Township of Burlington, NJ
Burlington County
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Table of Contents
Table of Contents
A. 
Generally. In order to satisfy the constitutional obligations of the Township, as set forth by the New Jersey Supreme Court in its Mount Laurel I and Mount Laurel II decisions, the Fair Housing Act of 1985, and the regulations promulgated thereunder, greater flexibility in design, layout and construction of residential development must be permitted in order to encourage developers to participate in the affordable housing compliance process. The regulations established by this section are intended to promote that purpose, to provide appropriate controls on affordability, and to meet the Township's responsibilities to protect and defend its natural resources, ecological systems, open spaces, natural beauty and the value of property within the Township, while at the same time providing for its fair share of the region's need for affordable housing ("affordable housing units").
B. 
Specifically. The regulations established by this section are also intended to:
(1) 
Preserve the Township's environmental and natural resources and avoid potential hazards thereto in anticipation of future development.
(2) 
Avoid environmental degradation and its resultant harmful effects upon the public health, safety and welfare.
(3) 
Provide measures to assure that newly constructed low- and moderate-income sales units remain affordable to low- and moderate-income households for a period of not less than 20 years.
(4) 
Provide measures to assure that low- and moderate-income rental units remain affordable to low- and moderate-income households for a period of not less than 20 years.
(5) 
Provide measures to assure that rehabilitated owner-occupied single-family housing units that are improved to code standard shall be subject to affordability controls for at least six years.
(6) 
Provide measures to assure that rehabilitated renter-occupied housing units that are improved to code standard shall be subject to affordability controls for at least 10 years.
(7) 
Establish an authority responsible for assuring that low- and moderate-income housing units remain affordable to low- and moderate-income households.
(8) 
Encourage innovations in housing design and land development techniques and provide for necessary facilities for such developments.
(9) 
Promote compatibility with the Township's current zoning plan and pattern of development.
(10) 
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.
(11) 
Encourage more effective use of land and of public services.
(12) 
Preserve the residential integrity of the Township.
(13) 
Ensure compatibility among various land uses.
(14) 
Avoid cost-generative procedures, practices or requirements where alternatives exist which still protect the health, safety and welfare of the community.
(15) 
Provide the Township of Burlington's required fair share of affordable housing units.
[1]
Editor's Note: The appendix to this Article VIII, entitled "Affordable Housing: A Declaration of Covenants, Conditions and Restrictions," is included at the end of this chapter.
The following words and terms, when used in this article, shall have the following meanings unless the context clearly indicates otherwise:
ACT
The Fair Housing Act of 1985, L. 1985, c. 222 (N.J.S.A. 52:27D-301 et seq.).
AFFORDABLE
A sales price or rent within the means of a low- or moderate-income household, as defined in N.J.A.C. 5:92-12.1 et seq., Controls on Affordability.
ALTERNATIVE LIVING ARRANGEMENT
A structure in which households maintain private rooms yet share kitchen and plumbing facilities, central heat and common areas. "Alternative living arrangement" includes, but is not limited to, Class C boardinghomes, as regulated by the New Jersey Department of Community Affairs; residential health care facilities, as regulated by the State Department of Health and Senior Services; group homes for the developmentally disabled and mentally ill, as licensed and/or regulated by the New Jersey Department of Human Services, and congregate living arrangements. All such facilities must be subject to controls on affordability acceptable to the Council.
APPROVABLE SITE
A site that may be developed for low- and moderate-income housing in a manner consistent with the regulations of all agencies with jurisdiction over the site. A site may be approvable although not currently zoned for low- and moderate-income housing.
AUTHORITY
The Burlington Township Affordable Housing Authority, whose duties include monitoring the occupancy, resale and rental restrictions of low- and moderate-income housing units.
AVAILABLE SITE
A site with clear title, free of encumbrances which preclude development for low- and moderate-income housing.
COAH
The New Jersey Council on Affordable Housing established under the Act and which has primary jurisdiction for the administration of housing obligations in accordance with sound regional planning considerations in this state.
CONVERSION
The conversion of existing commercial, industrial or residential structures for low- and moderate-income housing purposes where a substantial percentage of the housing units is provided for a reasonable income range of low- and moderate-income households.
DEFICIENT UNIT
A housing unit that is not decent, safe or sanitary, as further determined through census surrogates or on-site inspection, and does not comply with the local codes or other housing standards, and is determined pursuant to the method described in N.J.A.C. 5:92-5.2.
EXEMPT SALES
Includes 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.
FAIR MARKET VALUE
The unrestricted price of a low- or moderate-income housing unit if sold at a current real estate market rate.
FAIR SHARE PLAN
That plan or proposal by which the Township proposes to satisfy its obligation to create a realistic opportunity to meet its fair share of low- and moderate-income housing needs of its region and which details the affirmative measures the Township proposes to undertake to achieve its fair share of low- and moderate-income housing, as provided in Sections 9 and 14 of the Act.
GROSS DENSITY
The total number of dwelling units existing or permitted on a housing site, divided by the total area of the tract. The result is expressed as dwelling units per acre.
GROWTH AREA
The lands so designated by the 1980 State Development Guide Plan as updated by the State Development and Redevelopment Plan.
HOUSEHOLD
The person or persons occupying a housing unit.
HOUSING ELEMENT
That portion of the Township's Master Plan consisting of reports, statements, proposals, maps, diagrams and text designed to meet the Township's fair share of its region's present and prospective housing needs particularly with regard to low- and moderate-income housing and which contains at least those items identified in Section 10 of the Act.
HOUSING REGION
A geographic area, determined by COAH, of no less than two nor more than four contiguous, whole counties which exhibit significant social, economic and income similarities and which constitute, to the greatest extent practicable, the Primary Metropolitan Statistical Areas (PMSA), as last defined by the United States Census Bureau, prior to July 2, 1985.
INCLUSIONARY DEVELOPMENT or AFFORDABLE HOUSING DEVELOPMENT
A residential housing development in which a substantial percentage of the housing units is provided for a reasonable income range of low- and moderate-income households. The term may also mean housing developments comprised completely of low- and moderate-income units.
LOW-INCOME HOUSING
Housing affordable, according to Federal Department of Housing and Urban Development or other recognized standards for home ownership and rental costs, and occupied or reserved for occupancy by households with a gross household income equal to 50% or less of the median gross household income for households of the same size within the housing region in which the housing is located, and which is subject to affordability controls.
MODERATE-INCOME HOUSING
Housing affordable, according to Federal Department of Housing and Urban Development or other recognized standards for home ownership and rental costs, and occupied or reserved for occupancy by households with a gross income equal to or more than 50% but less than 80% of the median gross household income for households of the same size within the housing region in which the housing is located, and which is subject to affordability controls.
MULTIFAMILY UNIT
A structure containing two or more dwelling units.
PRICE DIFFERENTIAL
The difference between the controlled unit sale price and the fair market value, as determined at the date of a proposed contract of sale, after reasonable real estate broker fees have been paid.
PRIORITY
A system of selecting applicants.
REHABILITATED UNIT
A previously deficient housing unit which has undergone significant renovation to meet municipal or other applicable housing code standards as further described in Subchapter 11, Regional Contribution Agreements (RCAs).
REPAYMENT CLAUSE
The obligation of a seller exercising a repayment option to pay 95% of the price differential to the Township at closing for use in the Township's housing plan.
REPAYMENT OPTION
The option of a seller of a low- or moderate-income unit to sell a unit pursuant to N.J.A.C. 5:92-12.7 at fair market value, subject to compliance with the terms of a repayment clause.
RESOLUTION OF PARTICIPATION
A resolution adopted by a Township in which the Township chooses to prepare a fair share plan and housing element in accordance with the Act.
RESTRICTED
Restricted for occupancy by a class of individuals by virtue of legally enforceable conditions contained within a deed or other duly recorded document.
REVIEW AGENCY
The Burlington Township Planning Board or, where required by the provisions of N.J.S.A. 40:55D-70(d), the Burlington Township Zoning Board of Adjustment.
SECTION 8 INCOME LIMITS
A schedule of income limits that defines "fifty-percent and eighty-percent median income" by household size. When used herein, Section 8 income limits shall refer to the "uncapped" schedule as contained in the Technical Appendix to N.J.A.C. 5:92-1.1 et seq.
SET-ASIDE
The percentage of housing units devoted to low- and moderate-income households within an inclusionary or affordable housing development.
SUBSTANTIVE CERTIFICATION
A determination by COAH approving a municipality's housing element and fair share plan in accordance with the provisions of the Act and the rules and criteria as set forth herein. A grant of substantive certification shall be valid for a period of six years in accordance with the terms and conditions contained therein.
A. 
Pursuant to N.J.A.C. 5:92-12.11, there is hereby established the Burlington Township Affordable Housing Authority for the purpose of assuring that low- and moderate-income housing units remain affordable to low- and moderate-income households. The Authority shall be the review agency responsible for review of concept plans, applications for development under this article, and to otherwise carry out the duties and responsibilities assigned to it by virtue of the Fair Housing Act, the Council on Affordable Housing (COAH) rules and regulations, and this article. The Authority shall adopt such reasonable rules and regulations as are necessary for the efficient discharge of its duties.
B. 
The Authority shall consist of a board of five members and such staff as may from time to time be assigned in the discretion of the Township Administrator or established by ordinance.
C. 
The members of the Board shall be the Mayor, the President of Council, the Township Planner, and two members to be appointed by the Mayor with the advice and consent of Council.
D. 
The initial term of office for the Board members shall terminate on January 1 of the year following the year in which this article becomes effective. Thereafter, members shall be appointed for one-year terms.
E. 
The Authority shall carry out the duties assigned to it by this article and contemplated under N.J.A.C. 5:92-1.1 et seq.
A. 
Newly constructed low- and moderate-income sales units shall remain affordable to low- and moderate-income households for a period of not less than 20 years.
B. 
Low- and moderate-income rental units shall remain affordable to low- and moderate-income households for a period of not less than 20 years.
C. 
Rehabilitated owner-occupied single-family housing units that are improved to code standard shall be subject to affordability controls for at least six years.
D. 
Rehabilitated renter-occupied housing units that are improved to code standard shall be subject to affordability controls for at least 10 years.
E. 
Housing units created through conversion of a nonresidential structure shall be considered a new housing unit and shall be subject to the controls on affordability as delineated in Subsections A, B and F of this section.
F. 
If the Township is receiving state aid pursuant to N.J.S.A. 52:27D-178 et seq., and exhibits one of the characteristics delineated in N.J.A.C. 5:92-5.3(b), the minimum terms specified in Subsections A and B above shall be reduced to 10 years.
A. 
No certificate of occupancy shall be issued for initial occupancy of a low- or moderate-income sales unit until and unless there is a written determination by the Authority that the unit is to be controlled by a deed restriction and mortgage lien as contained in the Appendix[1] hereto or such amended form as may be adopted by COAH. The determination shall be made by the Authority within 10 days of receipt by the Authority of a proposed deed restriction and mortgage lien. Amendments to the deed restriction and lien shall be permitted only if they have been approved by COAH. A request for such amendment may be made by the Authority, the governing body or a developer.
[1]
Editor's Note: Said Affordable Housing Appendix is included at the end of this chapter.
B. 
No initial occupancy of a low- or moderate-income sales unit shall occur prior to the issuance of a certificate of occupancy in accordance with Subsection A above.
C. 
A certificate of reoccupancy shall be required for any occupancy of a low- or moderate-income sales unit resulting from a resale, and no such certificate shall issue until there is a written determination by the Authority that the unit is to be controlled by the deed restriction and mortgage lien required by COAH. Purchasers of low- and moderate-income sales units shall execute the deed restriction and mortgage lien prior to issuance of the certificate of occupancy regardless of whether the sellers had executed the deed restriction and mortgage lien adopted by COAH upon acquisition of the property. The Authority shall make such determination within 10 days of receipt of a proposed deed restriction and mortgage lien.
D. 
The certificate of reoccupancy shall not be required pursuant to this article in sales for which controls are allowed to expire or in which the repayment option is being exercised pursuant to § 330-44 below.
E. 
The mortgage lien and the restrictive covenant shall be filed in the land records of the Office of the Clerk of Burlington County. The lien and restrictive covenant shall be as adopted by COAH, unless it has approved amendments.
F. 
The restrictive covenant, including the repayment clause, and the mortgage lien shall have priority over all mortgages on the property except for a first mortgage placed on the property by the mortgagee prior to the expiration of resale controls.
A. 
The restrictive covenant governing the deeds of low- and moderate-income units shall include an option permitting purchase of the affordable housing unit at the maximum allowable restricted sales price at the time of the first nonexempt sale after controls on affordability have been in effect on the unit for the period specified in § 330-42A. The option to buy shall be available to the Township, the Department of Community Affairs, the New Jersey Housing and Mortgage Finance Agency, or a qualified nonprofit agency as determined by COAH.
B. 
All restrictive covenants governing low- and moderate-income units shall require the owner to notify the Authority by certified mail of any intent to sell the unit 90 days prior to entering into an agreement for the first nonexempt sale after controls have been in effect on the housing unit for the period specified in § 330-42A.
C. 
Upon receipt of a notice of intent to sell, the option to buy the unit, referred to in Subsection A above, shall be available for 90 days. The Authority shall notify the Township, the Department of Community Affairs, the New Jersey Housing and Mortgage Finance Agency and COAH that the unit is for sale. If the Township exercises this option, it may enter into a contract of sale and proceed subject to N.J.A.C. 5:92-12.4. If the Township fails to exercise this option within 90 days, the first of the other entities giving notice to the seller of its intent to purchase during the ninety-day period shall be entitled to purchase the unit. If the option to purchase the unit is not exercised by a written offer to purchase the housing unit within 90 days of receipt of the intent to sell, the owner may proceed to sell the housing unit. If the owner does not sell the unit within one year of the date of delivery of the notice of intent to sell, the option to buy the unit shall be restored and the owner shall be required to submit a new notice of intent to sell 90 days prior to any future proposed date of sale.
D. 
Any option to buy a housing unit at the maximum allowable restricted sales price shall be exercised by certified mail and shall be deemed exercised upon mailing.
A. 
An eligible seller of a low- or moderate-income unit which has been controlled for the period established by § 330-42A, who has provided notice of intent to sell, may proceed with the sale if no eligible entity as outlined in § 330-44 exercises its option to purchase within 90 days.
B. 
Subject to § 330-46 below, the seller may elect to:
(1) 
Sell to a qualified low- and moderate-income household at the controlled unit sales price in accordance with existing COAH rules, providing the unit is regulated by the restrictive covenant and lien adopted by COAH for a period of up to 20 years; or
(2) 
Exercise the repayment option and sell to any purchaser at market price, provided that 95% of the price differential is paid to the Authority, as an instrument of the Township, at closing.
C. 
If the sale will be to a qualified low- and moderate-income household, the Authority shall certify the income qualifications of the purchaser and shall ensure the housing unit is regulated by the restrictive covenant and lien required by COAH.
D. 
The Authority shall examine any contract of sale containing a repayment option to determine if the proposed sales price bears a reasonable relationship to the housing unit's fair market value. In making this determination, the Authority may rely on comparable sales data or an appraisal. The Authority shall not approve any contract of sale where there is a determination that the sales price does not bear a reasonable relationship to fair market value. The Authority shall make a determination within 20 days of receipt of the contract of sale and shall calculate the repayment option payment.
E. 
The Authority shall adopt an appeal procedure by which a seller may submit written documentation requesting the Authority to recompute the repayment obligation, if the seller believes an error has been made, or to reconsider a determination that a sales price does not bear a reasonable relationship to fair market value. A repayment obligation determination made as a result of an owner's appeal shall be a final administrative determination of the Authority.
F. 
The repayment shall occur on the date of closing at the transfer of title for the first nonexempt transaction after the expiration of controls on affordability.
G. 
Repayment proceeds shall be deposited in a trust account devoted solely to the creation, rehabilitation or maintenance of low- and moderate-income housing. Money deposited in trust accounts may not be expended until the Township submits and COAH approves a repayment housing plan. COAH may approve the repayment housing plan if it determines that it provides a realistic opportunity for the creation, rehabilitation or maintenance of low- and moderate-income housing.
A. 
The Township shall have the right to determine that the most desirable means of promoting an adequate supply of low- and moderate-income housing is to prohibit the exercise of the repayment option and maintain controls on lower income housing units sold within the Township beyond the period required by § 330-42A. Such determination shall be made by resolution of the governing body and shall be effective upon filing with COAH and the Authority. The resolution shall specify the time period for which the repayment option shall not be applicable. During such period, no seller in the Township may utilize the repayment option permitted by § 330-45.
B. 
If the Township adopts a resolution prohibiting the exercise of the repayment option, it shall:
(1) 
Provide public notice in a newspaper of general circulation in the Township; and
(2) 
Promptly notify COAH and the Authority of its action by filing a true copy of the resolution with each of them.
C. 
Upon receipt of the resolution, as set forth above, the Authority shall ensure that the deed restrictions on all affected housing units reflect the extended period of controls.
When a housing unit has been maintained as a low- or moderate-income unit after controls have been in effect for the period specified in § 330-42A, the restrictive covenant governing the housing units shall allow the Township, the state, qualified nonprofit agencies and sellers of low- and moderate-income units to again exercise all the same options as provided in this article.
A. 
The initial price of a low- and moderate-income owner-occupied single-family housing unit shall be that price at which, after a down payment of 10%, the monthly principal, interest, taxes, insurance and condominium fees do not exceed 28% of the eligible gross monthly income.
B. 
The master deeds or restrictive covenants of affordable housing developments shall provide that the condominium or homeowners' association fees and any special assessments of low- or moderate-income purchasers shall be, in the case of low-income purchasers, 50%, and in the case of moderate income purchasers, 80%, of those paid by market purchasers. Once established within the master deed or restrictive covenants, this percentage shall not be amended without prior approval of COAH.
C. 
Rents, including an allowance for utilities consistent with the personal benefit expense allowance for utilities as defined by HUD or a similar allowance approved by COAH, shall be set so as to not exceed 30% of the gross monthly income. Maximum rent shall be calculated as a percentage of the uncapped Section 8 income limit as defined in N.J.A.C. 5:92-1.3 and published by HUD or other recognized standard as adopted by COAH that applies to the rental housing unit.
D. 
The following criteria shall be considered in determining rents and sales prices:
(1) 
Efficiency units shall be affordable to one-person households;
(2) 
One-bedroom units shall be affordable to two-person households;
(3) 
Two-bedroom units shall be affordable to three-person households;
(4) 
Three-bedroom units shall be affordable to five-person households;
(5) 
Four-bedroom units shall be affordable to seven-person households.
E. 
Housing units that satisfy the criteria in Subsections A through D above shall be considered affordable.
F. 
Median income by household size shall be established by the uncapped Section 8 limits or other recognized standard as set forth in Subsection C above.
A. 
The price of an affordable owner-occupied housing unit and the rents of affordable housing units may increase annually based upon the percentage increase in median income for the Southwest Housing Region (as defined in N.J.A.C. 5:92-2.1) as determined from the uncapped Section 8 income limits published by HUD, as defined in N.J.A.C. 5:92-1.3 or other recognized standard adopted by COAH that applies to the rental housing unit.
B. 
The Authority shall file an annual report with the Township Council certifying, for each affordable housing unit, the household income of the occupants, the unit's rent/sales level and other fees associated with the unit. The Authority shall have the responsibility for enforcing the income and pricing the affordable housing units. All applications for affordable housing units shall be submitted to the Authority.
If the use of median income data adopted by COAH to index the cost of housing renders a unit unaffordable to a low- or moderate-income household at the time of resale, the Authority shall, nevertheless, maintain adequate controls on affordability in place in order to retain credit with COAH for the housing unit. The Township may, but shall not be required to, subsidize such a housing unit to maintain affordability.
Persons wishing to sell affordable units shall notify the Authority in writing of the intent to sell. If no eligible buyer enters into a contract of sale for the unit within 90 days of the notification, the Authority shall have the option to purchase the unit for the maximum price permitted based upon the regional increase in median income as defined by HUD or other recognized standard adopted by COAH. If the Authority does not purchase the unit, the seller may apply for permission to offer the unit to a non-income-eligible household at the maximum price permitted. The seller, as part of this application, shall document efforts to sell the unit to an income-eligible household. If the request is granted, the seller may offer low-income housing units to moderate-income households and moderate-income housing units to households earning in excess of 80% of median. In no case shall the seller be permitted to receive more than the maximum price permitted. In no case shall a sale pursuant to this section eliminate the resale controls on the unit or permit any subsequent seller to convey the unit except in full compliance with the terms of this article.
Property owners of single-family, owner-occupied affordable housing may apply to the Authority for permission to increase the maximum price, based upon eligible capital improvements. Eligible capital improvements shall be those that render the unit suitable for a larger household. In no event shall the maximum price of an improved housing unit exceed the limits of affordability for the larger household. Property owners shall apply to the Authority if an increase in the maximum sale price is sought.
A judgment of foreclosure or a deed in lieu of foreclosure in favor of a financial institution regulated by state and/or federal law or by a lender on the secondary mortgage market (including but not limited to the Federal National Mortgage Association, the Home Loan Mortgage Corporation, the Government National Mortgage Association or any entity acting on their behalf) shall extinguish controls on affordable housing units, provided there is compliance with § 330-54. Notice of foreclosure shall allow the Authority, the Township, the Department of Community Affairs, the New Jersey Housing and Mortgage Finance Agency, or a qualified nonprofit organization to purchase the affordable unit at the maximum permitted sales price and maintain it as an affordable unit for the balance of the intended period of controls. Failure to purchase the affordable housing unit shall result in COAH adding the unit to the Township's present and prospective fair share obligation. Failure of the financial institution to provide notice of a foreclosure action to the Authority shall not impair any of the financial institution's rights to recoup loan proceeds; shall not negate the extinguishment of controls or the validity of the foreclosure; and shall create no cause of action against the financial institution.
In the event of a foreclosure sale, the owner of the affordable housing unit shall be personally obligated to pay to the Authority any surplus funds but only to the extent that such surplus funds exceed the difference between the maximum price permitted at the time of foreclosure and the amount necessary to redeem the debt to the financial institution including costs of foreclosure.
In every area zoned for an optional form of development (see § 330-71I), property may be developed in accordance with the regulations of this chapter pertaining to the prevailing or underlying zone designation. Prior to applying for approval of an optional form of development, however, a developer shall propose a concept plan to the Authority for his development which includes participation in the Township's affordable housing compliance process. If that concept plan is accepted by the Authority, the developer shall submit an affordable housing plan (the "developer's plan") as a part of his formal application for development. The affordable housing plan shall be in accordance with § 330-56 below and shall be submitted to the Authority at the same time the application for development is submitted to the review agency. In determining a developer to be eligible to participate, the Authority will consider the total number of units in the proposed development; the density which is proposed; the number, type, arrangement and location of the affordable housing units, and the proximity of appropriate retail, service, community and transportation facilities to the site of the development and the affordable housing units.
A developer subject to the requirements of this article shall, in addition to satisfying all other provisions of this article, provide the following information in its developer's plan:
A. 
Proof of status. A developer must submit as part of its developer's plan adequate proof that it is the owner or contract purchaser of sufficient land within the Township to meet the minimum acreage requirements for an optional form of development.
B. 
Staging plan.
(1) 
The developer's plan must contain information on the staging of the development for the Authority to conclude that affordable housing units will be constructed within a reasonable and appropriate time period. The developer's plan must demonstrate that the following construction schedule or such other schedule as is required by COAH will be followed:
Maximum Percent of Market-Priced Units Constructed and Occupied
Minimum Percent of Low- and Moderate-Priced Units Constructed and Occupied
25%
0%
25% + 1 unit
10%
50%
50%
90%
75%
100%
100%
(2) 
The developer's plan must include provisions which assure that certificates of occupancy for market-priced dwelling units will not be issued until certificates of occupancy have been issued for the affordable housing units in accordance with the foregoing schedule.
C. 
Resale or relet. The developer's plan shall include the deed restrictions and mortgage lien as set forth in § 330-43 above to be included in the title and, in the case of rental units, complementary language in the leases, to all affordable housing units, which will restrict the resale or release price of the units in such a manner as to assure their affordability to low- and moderate-income families for the periods set forth in § 330-42 from the date of issuance of the first certificate of occupancy issued for the unit.
D. 
Bedroom distribution. The developer's plan shall comply with and demonstrate the following:
(1) 
A minimum of 35% of all low- and moderate-income units shall be two-bedroom units; and
(2) 
A minimum of 15% of all low- and moderate-income units shall be three-bedroom units; and
(3) 
A maximum of 20% of all low- and moderate-income units may be efficiency units.
E. 
Range of affordability.
(1) 
The developer's plan shall provide that the average price of low- and moderate-income units within its development shall be, as best as practicable, affordable to households at 57.5% of median income as contained in § 330-48F.
(2) 
In devising the range of affordability for purchased housing, as required in Subsection E(1) above, the developer shall provide, as best as practicable, for the following distribution of prices for every 20 low- and moderate-income units:
Proposed Pricing Stratification
Low
1 at 40% through 42.5%
3 at 42.6% through 47.5%
6 at 47.6% through 50%
Moderate
1 at 50.1% through 57.5%
1 at 57.6% through 64.5%
1 at 64.6% through 68.5%
1 at 68.6% through 72.5%
2 at 72.6% through 77.5%
4 at 77.6% through 80%
F. 
Age-restricted and alternative living units. The Township may address up to 25% of its fair share obligation, as calculated after credits and adjustments (less any units transferred by means of a regional contribution agreement), by creation of age-restricted housing units or alternative living arrangements. Therefore, the developer's plan may include provision for such units within this limitation. The unit of credit for alternative living arrangements shall be the bedroom.
G. 
Rental housing. The developer's plan shall provide that 20% of the affordable housing units shall be affordable rental units. Within zones designated as rental inclusionary zones, a fifteen-percent affordable housing set-aside shall be provided.
H. 
Occupancy preference. The developer's plan shall provide that income-eligible Township residents, Township employees, and qualifying senior citizens shall have the first priority in the purchase or lease of up to 50% of the affordable housing units.
I. 
Marketing plan.
(1) 
The developer's plan shall include a written affirmative marketing plan acceptable to the Authority that addresses the occupancy preference requirements of Subsection H above. The affirmative marketing plan shall include provisions for the developer and/or sponsor of low- and moderate-income housing to market, screen, offer occupancy, and select income-eligible households accordingly. Alternately, subject to the approval of the Authority and COAH, the developer's plan may provide for the retention of outside agents to carry out the affirmative marketing plan.
(2) 
In addition, the affirmative marketing plan shall be designed to ensure that low- and moderate-income persons of all races are informed of housing opportunities in the development, feel welcome, and have the opportunity to buy or lease such housing. It shall include advertising and other similar outreach activities, including means of advising those persons with priority in a timely and informative manner. If the development is approved, the developer shall implement the affirmative marketing plan.
(3) 
The affirmative marketing plan shall be subject to COAH review and certification. It shall identify representative groups, i.e., community-based and civic organizations, councils of churches, welfare and social service agencies and the like operating in the Township and the Southwest Housing Region. Any developer and/or sponsor of a project with 25 or more low- and moderate-income housing units shall actively market these units to appropriate representative groups, as specified in the affirmative marketing program. The developer's plan shall identify for review and approval by the Authority minimum and appropriate affirmative marketing requirements for projects of less than 25 low- and moderate-income units.
(4) 
The affirmative marketing plan shall commence at least 90 days before the issuance of either temporary or permanent certificates of occupancy and shall continue until all low- and moderate-income housing units are under contract of sale and/or lease.
(5) 
For initial occupancy priority, households shall be screened for occupancy preference as required in Subsection H above. These households shall be offered contracts of sale and/or lease first and before other income-eligible households. When 50% of the housing units have been purchased or leased, according to Subsection H, the remaining income-eligible applicants not yet under contract shall be pooled and offered contracts. Within all rounds of the applicant selection process, the developer's plan shall provide for random selection of eligible applicants.
J. 
Counsel's opinion. The developer's plan shall include a request for comment by the Authority's counsel and the Township's Attorney on the consistency of the documents required above with this article's standards, COAH's standards, and Township policies in the area of concern.
A. 
The Authority shall review all affordable housing plans for consistency with the provisions of this article, the Fair Housing Act and COAH regulations. The Authority shall not approve any plan which is inconsistent with these provisions. A report advising consistency or lack of consistency shall be given to the developer and the review agency within 45 days of receipt of an affordable housing plan containing the requirements of section § 330-56.
B. 
The Authority shall prepare progress reports on an eighteen-month cycle from the date of the Township's substantive certification. These reports shall be made available to the public and filed with the Township Administrator and COAH. These reports shall provide an analysis of the actual characteristics of households occupying low- and moderate-income units compared to the occupancy preference set forth in § 330-56H.
C. 
Three and six years from substantive certification, the Authority shall prepare and file with the Township Administrator and COAH summary reports of its affirmative marketing programs. These reports shall expand upon previous progress reports by assessing the aggregate and up-to-date effectiveness of the programs. If applicable, the Authority shall recommend improvements to redress its record of occupancy preference to reflect the requirements of § 330-56H.
A. 
Generally. Except as noted below, all developers seeking approval for a development incorporating affordable housing units shall comply with the requirements of this chapter dealing with plan and procedural requirements when submitting their application for development for approval, specifically including review and approval by the Authority. (See Articles III, IV, V and VI.) However, as permitted under N.J.S.A. 40:55D-45.3, a developer proposing to develop under this section may make application to the review agency for approval of a proposed general development plan ("GDP") for the development, pursuant to the following provisions.
(1) 
The GDP may include, at the option of developer, the same information and detail required for a preliminary subdivision plan or preliminary site plan, but the GDP shall include, at a minimum, each of the following:
(a) 
A general land use plan at a scale specified by the Land Subdivision Ordinance indicating the tract area and general locations of the land uses to be included in the development. The total number of units and amount of nonresidential floor area to be provided and proposed land area to be devoted to residential and nonresidential uses shall be set forth. In addition, the proposed types of nonresidential uses to be included in the development shall be set forth, and the floor area and land area to be occupied by each proposed use shall be estimated. The density and intensity of use of the entire development shall be set forth, and a residential density and a nonresidential floor area ratio shall be provided;
(b) 
A circulation plan showing the general location and types of road facilities, including facilities for pedestrian access, within the development;
(c) 
An open space plan showing the proposed land area and general location of parks and any other land areas to be set aside for conservation and recreational purposes and a general description of improvements proposed to be made thereof;
(d) 
A utility plan indicating the need for and showing the proposed location of sewage lines and waterlines, drainage facilities necessitated by the physical characteristics of the site, proposed methods for handling solid waste disposal; and a plan for the operation and maintenance of proposed utilities; and
(e) 
A proposed timing schedule in the case of a development whose construction is contemplated over a period of years, including any terms or conditions which are intended to protect the interests of the public and of the residents who occupy any section of the development prior to the completion of the development in its entirety.
(2) 
As a precondition to approving any GDP, the review agency must make the following findings:
(a) 
That the development of the subject property to the development standards of this section, instead of under the regulations otherwise applicable to the subject property, conforms to the standards of N.J.S.A. 40:55D-45(a) through (e);
(b) 
That the proposals for maintenance and conversion of the common open space are reliable, and the amount, location and purpose of the common open space are adequate;
(c) 
That provisions through the physical design of the proposed development for public services, control over vehicular and pedestrian traffic, and the amenities of light and air, recreation and visual enjoyment are adequate;
(d) 
That the proposed development will not have an unreasonably adverse impact upon the area in which it is proposed to be established; and
(e) 
In the case of a development which contemplates construction over a period of years, that the terms and conditions intended to protect the interests of the public and of the residents, occupants and owners of the proposed development in the total completion of the development are adequate.
(3) 
The term of the effect of the GDP approval shall be determined by the review agency using the guidelines set forth in this section, except that the term of the effect of the approval shall not exceed 20 years from the date upon which the developer receives final approval of the first section of the development. In making its determination regarding the duration of the effect of approval of the GDP, the review agency shall consider the number of units or amount of nonresidential floor area to be constructed, prevailing economic conditions, the time schedule to be followed in completing the development and the likelihood of its fulfillment, the developer's capability of completing the proposed development and the contents of the GDP, and any conditions which the review agency attaches to the approval thereof.
(4) 
The review agency shall grant or deny GDP approval within 95 days after submission of a complete application to the Administrative Officer, or within such further time as may be consented to by the developer. Failure of the review agency to act within the period prescribed shall constitute GDP approval of the development.
(5) 
In the event that the developer seeks to modify the proposed timing schedule for development of the development, such modification shall require the approval of the review agency. The review agency shall, in deciding whether or not to grant approval of the modification, take into consideration prevailing economic and market conditions, anticipated and actual needs for units and nonresidential space within the Township and the region, and the availability and capacity of public facilities to accommodate the proposed development.
(6) 
Except as provided hereunder, the developer shall be required to gain the prior approval of the review agency if after approval of the GDP the developer wishes to make any variation in the location of land uses within the development to increase the density of residential development or the floor area ratio of nonresidential development in any section of development.
(7) 
Any variation in the location of land uses or increase in density or floor area ratio proposed in reaction to a negative decision of or a condition of development approval imposed by the Department of Environmental Protection, pursuant to N.J.S.A. 13:19-1 et seq., shall be approved by the review agency if the developer can demonstrate to the satisfaction of the review agency that the variation being proposed is a direct result of such determination by the Department of Environmental Protection, as the case may be.
(8) 
Once the review agency has approved the GDP, the developer shall make and process applications for preliminary and final subdivision and/or site plan approvals for the development or sections thereof pursuant to this chapter; provided, however, that nothing herein shall be deemed to prevent or prohibit the developer from seeking preliminary subdivision and/or site plan approvals for the development or sections thereof simultaneously with its application for approval of the GDP.
(9) 
Except as provided herein, once a GDP has been approved by the review agency it may be amended or revised only upon application by the developer and approval by the review agency. Notwithstanding the foregoing, the approval and any amendments shall be subject to the affordable housing requirements and review by the Authority.
(10) 
A developer, without violating the terms of the approval pursuant to this article, may in undertaking any section of the development reduce the number of units or amount of nonresidential floor space by no more than 15% or reduce the residential density or nonresidential floor area ratio by no more than 15%.
(11) 
Notification of completion of any section of the development; failure to complete.
(a) 
Upon the completion of each section of the development as set forth in the approved GDP, the developer shall notify the Administrative Officer and the Authority, by certified mail, as evidence that the developer is fulfilling his obligations under the approved GDP. For the purpose of this section, "completion" of any section of the development shall mean that the developer has acquired a certificate of occupancy for every unit or every nonresidential structure, as set forth in the approved GDP. If the Township and the Authority does not receive such notification at the completion of any section of the development, the Township and the Authority shall notify the developer by certified mail in order to determine whether or not the terms of the approved GDP are being complied with.
(b) 
If a developer does not complete any section of the development within 24 months of the date provided for in the approved GDP, or if at any time the Township or the Authority has cause to believe that the developer is not fulfilling his obligations pursuant to the approved GDP, the Township shall notify the developer by certified mail, and the developer shall have 10 days within which to give evidence that he is fulfilling his obligations pursuant to the approved GDP. The Township, through the review agency, or in the event of a deficiency in the compliance with the affordable housing plan, the Authority, thereafter shall conduct a hearing to determine whether or not the developer is in violation of the approved GDP. If after such a hearing the Township or the Authority, as the case may be, finds good cause to terminate the GDP approval, it shall provide written notice of same to the developer, and the approval shall be terminated 30 days thereafter.
(12) 
In the event that a developer who has GDP approval does not apply for preliminary approval for the development which is the subject of that GDP approval within five years of the date upon which the GDP has been approved by the review agency, the Township shall have cause to terminate the GDP approval.
(13) 
In the event that a development which is the subject of an approved GDP is completed before the end of the term of the approval, the approval shall terminate with the completion of the development. For the purposes of this section, a development shall be considered complete on the date upon which a certificate of occupancy has been issued for the final residential or nonresidential structure in the last section of the development in accordance with the timing schedule set forth in the approved GDP and the developer has fulfilled all of his obligations pursuant to the approval.
B. 
Sectional development approvals. After the review agency has approved the GDP for a development, the developer may proceed to make application to the review agency for preliminary and final subdivision and site plan approvals for the sections of the development (the "section plan"). Every section plan must also be submitted to the Authority for a determination of consistency with the affordable housing plan. Every section plan submitted to the review agency for approval must be consistent with the GDP and must be accompanied by a written composite tabulation, certified by the developer's engineer, showing the following:
(1) 
Totals of approved units by type as reflected on GDP;
(2) 
Totals of units by type as shown on the section plan submitted for approval;
(3) 
Aggregate totals of all units by type shown on all previously approved section plans;
(4) 
Aggregate totals of each of the following shown on all previously approved section plans and the section plan then submitted for approval:
(a) 
Open space by percentage.
(b) 
Building coverage by percentage.
(c) 
Recreation facilities.
(5) 
If the review agency finds that the section plans are in conformity with this section and applicable development standards of this chapter, it shall approve the section plans. If the Authority finds that the section plans are consistent with the affordable housing plan and the requirements of this article and COAH regulations, it shall give notice to the developer and the review agency of such consistency.
When proposing to participate in an affordable housing compliance development, the following guidelines shall apply:
A. 
Density. A gross density in excess of that otherwise permitted for the proposed optional form of development shall be permitted. If the affordable housing units are to be "for sale" units, gross density may be increased up to a maximum total of six units per acre. If the affordable housing units are to be "rental" units, gross density may be increased up to a maximum of 7.8 units per acre. If the affordable housing units are to be a mix of "for sale" and "rental" units, the maximum gross density shall be six units per acre plus 1.8 multiplied by the percent of the units which are to be "rental" units. For example, if 50% of all affordable housing units are to be rental units, the maximum gross density may be 6.9 units per acre [6 + (0.5 x 1.8)]. If the affordable housing units are constructed for senior citizens housing limited to person aged 62 and over, the gross density for senior citizen components of the development shall be a maximum of 15 units per acre in three-story structures with a maximum of 36 units for each structure. Any senior citizen project sponsored by a nonprofit or limited-profit sponsor using current state and/or federal programs and financed through the New Jersey Housing Finance Agency and/or the United States Department of Housing and Urban Development may be designated so that the housing type, site design and unit distribution shall be as approved under state/federal program guidelines.
B. 
Housing mix. The mix of housing types may be altered from that which would otherwise be permitted/required. Single-family detached homes, to include conventional single-family homes and zero-lot-line homes, shall comprise not less than 30% of all units to be constructed. No other individual housing type (townhouses, patio homes, duplex, quadraplex, eightplex or garden apartments) shall comprise more than 35% of all units to be constructed. For every one-percent increase in the open space provided above the minimum requirements set by this chapter, the applicant may decrease the minimum single-family percentage by 2% to a minimum requirement of 25% of single-family detached dwelling units of all dwelling units to be built.
C. 
Number of affordable housing units. The minimum number of affordable housing units to be constructed shall be a percentage of the total number of units proposed. This percentage shall be related, proportionally, to the density proposed and the nature of their ownership. The following set-aside rules shall apply and be proportionately adjusted for variables not shown:
(1) 
All units are "for sale units:"
Units/Acre
Percent of Affordable Units
6
20
4.5
15
3
10
(2) 
All units are "rental units:"
Units/Acre
Percent of Affordable Units
7.8
15
5.85
11.25
3.9
7.5
(3) 
Units are a mixture of for sale and rental units:
20 x the percentage of "for sale" affordable units + 15% x the percentage of "for sale" affordable units equals the percentage of affordable units required.
For example, if the Mt. Laurel units are to be 50% each "for sale" and "rental" units, 17.5% of the total number of units to be constructed will be the minimum number of affordable units (50% x 20% =) 10 + (50% x 15% =) 7.5.5%.
D. 
Bulk requirements. A deviation of not more than 20% of the area, bulk (in addition to density) and dimensional requirements may be allowed, subject to the approval of the review agency under the standards of N.J.S.A. 40:55D-51 and 40:55D-52.
The review agency, when acting upon applications which include provisions for affordable units, may grant the following variations in improvement standards and specifications to the extent that a relaxation or reduction of the standards otherwise applicable will not be detrimental to the public health, safety and general welfare for either the Township or the future residents of the development, and so that the savings therefrom may aid in the construction of affordable units; otherwise the standard provisions of this chapter shall apply.
A. 
Drainage improvements. Swales may be substituted for piped stormwater systems, except in situations where swales are likely to cause erosion or impede pedestrian circulation. In those portions of the development where design densities are greater than five units/acre, piped storm drain systems may still be required. If used, swales shall have a bottom elevation that will allow any water from the subbase of the roadway or parking lot to seep freely into the swale, have side slopes not steeper than three horizontal to one vertical, have a flat bottom at the minimum of two feet in width, have capacity for the computed runoff, be sloped to handle the rate of runoff and lined with rock if soil characteristics or the grade require it, and allow a design flow of at least 0.5 feet per second but not more than two feet per second; an increase to three feet per second maximum shall require cement-lined swales. Street intersections shall be crowned to assure positive drainage into the swales. Where pipes are installed at road or driveway crossings or other required locations, the pipes shall be continuations of the swales. Except as noted or otherwise permitted, there shall be no waiver of the standards set forth in § 330-87.
B. 
Streetlighting. The normal street and other lighting standards of this chapter may be waived. Street and other lighting shall be required only in locations where needed to meet overall public safety consideration, such as intersections, public parking areas, walkways and other potentially hazardous locations. Where installed, lighting shall meet the requirements and/or objectives of § 330-95.
C. 
Parking. Off-street parking designs may have waivers of some, but not all, landscaping requirements, and may not be required to install curbing around all parking lots. Curbing will be required, however, where drainage control is needed and where erosion potential cannot adequately be addressed by alternate methods. A minimum of two spaces per unit shall be provided, plus one visitor space per five units other than single-family detached units. Pursuant to the state "model subdivision and site plan ordinance," the parking stall measurements may be nine feet by 18 feet with a twenty-four-foot driveway aisle permitting a minimum parking lot width of 60 feet.
D. 
Shade trees and landscaping. Shade tree plantings and landscaping requirements shall not be strictly applied. The need for shade and buffering where applicable shall be addressed in an efficient and cost-effective manner. Landscaping requirements shall be limited to that necessary to address shade, buffering and other landscaping needs in an efficient and cost-effective manner.
E. 
Open space. No other standard in this chapter withstanding, in an affordable housing unit compliance development a minimum of 20% of the tract area shall be set aside as open space, of which at least half is to be developed into active amenities as approved by the review agency to serve the needs of the residents of the proposed development in accordance with the following:
Type
Number of Units
Number of Amenities
Tot lots
1 to 100
1
101 to 300
2
301 to 500
3
Over 500
+1/250 units
Tennis courts
1 to 100
1
101 to 300
2
301 to 500
2
Over 500
+1/250 units
Basketball courts
1 to 100
1
101 to 300
1
301 to 500
2
Over 500
+1/250 units
F. 
Sidewalks. Sidewalks shall be waived where the review agency determines that they are unnecessary for public safety and adequate pedestrian circulation. Sidewalks need not follow all streets and, in some instances, may be better to follow open space corridors. The determination of whether sidewalks are needed and where they are best located shall be based on public safety factors considering the intensity of development, the probable volume of pedestrian traffic, the adjoining street classification where sidewalks parallel streets, access to school bus stops and public transportation, recreation areas, and the general type of improvement intended. Where required, sidewalks shall meet the requirements of § 330-105, except that macadam sidewalks may be substituted in areas characterized by low density of development, low intensity of anticipated use, and where such sidewalks will be maintained by a homeowners' association.
G. 
Curbs. Curbs and gutters may be waived except in locations where drainage control or erosion control are necessary. When curbs and/or gutters are required, they shall conform to the requirements of § 330-86.
H. 
Street patterns. The street pattern for the development shall be curvilinear in nature. To achieve this intent, curve radii shall conform to the following:
(1) 
Minimum curve radius for all street types shall be 150 feet.
(2) 
Minimum angle at street intersections shall be 75°.
(3) 
Where street intersections are on a curve, the minimum radius of curvature shall be 400 feet.
(4) 
The road intersecting the curve shall be radial to the curve and have a minimum of 100 feet straight tangent before intersecting with the curve.
(5) 
Sight triangles shall be a minimum of 15 feet from the curbline along intersecting street center line and a minimum of 200 feet in length along the intersected street.
(6) 
Speed limits for good traffic control and utilization of described sight triangles shall be a maximum of 25 mph.
Any developer who continues to propose an optional form of development after the review agency declines to accept that location for affordable housing units shall contribute to the Burlington Township Housing Trust Fund an amount consistent with the regulations of COAH for each affordable housing unit which otherwise would have been built on site.
Following approval of an application for development including an affordable housing plan:
A. 
Marketing plan. The developer shall implement the affirmative marketing plan as required by § 330-56I above following approval of the Authority but not less than 90 days before issuance of either permanent or temporary certificates of occupancy for the affordable housing units and shall continue such implementation until all affordable housing units are under contract of sale or lease.
B. 
Replies. Replies and inquiries solicited by the affirmative marketing program shall be directed, by instruction, to the Authority.
C. 
Administration. The Authority shall:
(1) 
Procedures and qualifications. Set up and administer procedures to receive applications and qualify applicants for residency in affordable housing units in accordance with currently prevailing regulations and standards.
(2) 
List of applicants. Maintain a list of qualified applicants cross-sorted and correlated by household income, current residency and household size. Provisions shall be made for the reaffirmation of qualification of each household at the time it is considered for occupancy of an affordable housing unit if more than six months has elapsed since the prior certification.
(3) 
Selection process. Establish a system for the random selection of applicants from the certifies list and provide copies of a list of the selected applicants, in selection order, to participating developers upon request.
(4) 
Progress report. Prepare a progress report as required by § 330-57B.
(5) 
Review. At three and six years from substantive certification, prepare a report as required by § 330-57C.
D. 
Sale and lease restrictions. Developers shall offer affordable housing units only to those households on the list(s) furnished to them by the Authority and, in the case of for sale units, shall assist the households in securing mortgages which will maintain occupancy costs as set forth in §§ 330-48 and 330-49 above.
E. 
Rental prohibition. Low- and moderate-income owner-occupied housing units shall not be rented or leased to any person, firm, organization or other entity without the expressed written approval of the Burlington Township Affordable Housing Authority.
F. 
Service fee. The seller of a low- and moderate-income housing unit shall pay a service fee in the amount of $425 to the Affordable Housing Authority in connection with certain legal and administrative services involving the monitoring of the sale of the low- and moderate-income housing unit and the review of the deed and such other documents as may be required to be prepared in connection with the sale of the low- and moderate-income housing unit. In the event the owner of the low- and moderate-income housing unit desires to refinance his mortgage, he shall pay a fee to the Affordable Housing Authority in the amount of $175, which would cover the administrative and legal services rendered in connection with that refinancing transaction, including, but not limited to, the review and/or preparation of this subordination agreement on behalf of Burlington Township.
[Amended 4-22-2008 by Ord. No. 08-OR-008]
[Amended 5-10-2005 by Ord. No. 05-OR-012; 2-14-2006 by Ord. No. 06-OR-002; 6-26-2012 by Ord. No. 12-OR-014; 5-28-2013 by Ord. No. 2013-OR-016; 11-12-2013 by Ord. No. 13-OR-035]
A. 
Purpose.
(1) 
In Holmdel Builder's Association V. Holmdel Township, 121 N.J. 550 (1990), the New Jersey Supreme Court determined that mandatory development fees are authorized by the Fair Housing Act of 1985 (the Act), N.J.S.A. 52:27d-301 et seq., and the State Constitution, subject to the Council on Affordable Housing's (COAH's) adoption of rules.
(2) 
Pursuant to P.L. 2008, c. 46 Section 8 (N.J.S.A. 52:27D-329.2) and the Statewide Non-Residential Development Fee Act (N.J.S.A. 40:55D-8.1 through 8.7), COAH is authorized to adopt and promulgate regulations necessary for the establishment, implementation, review, monitoring and enforcement of municipal affordable housing trust funds and corresponding spending plans. Municipalities that are under the jurisdiction of the Council or court of competent jurisdiction may retain fees collected from nonresidential development.
(3) 
This ordinance establishes standards for the collection, maintenance, and expenditure of development fees pursuant to the Council's regulations and in accordance with P.L. 2008, c. 46, Sections 8 and 32 through 38. Fees collected pursuant to this ordinance shall be used for the sole purpose of providing low- and moderate-income housing. This ordinance shall be interpreted within the framework of the Council's rules on development fees, codified at N.J.A.C. 5:97-8.
B. 
Basic requirements.
(1) 
This ordinance shall not be effective until approved by the Council pursuant to N.J.A.C. 5:96-5.1.
(2) 
Burlington Township shall not spend development fees until the Council has approved a plan for spending such fees in conformance with N.J.A.C. 5:97-8.10 and N.J.A.C. 5:96-5.3.
C. 
Definitions.
(1) 
The following terms, as used in this section, shall have the following meanings:
AFFORDABLE HOUSING DEVELOPMENT
A development included in the Housing Element and Fair Share Plan, and includes, but is not limited to, an inclusionary development, a municipal construction project or a one-hundred-percent affordable development.
COAH OR THE COUNCIL
The New Jersey Council on Affordable Housing established under the Fair Housing Act, which has primary jurisdiction for the administration of housing obligations in accordance with sound regional planning consideration in the state.
DEVELOPER
The legal or beneficial owner or owners of a lot or of any land proposed to be included in a proposed development, including the holder of an option or contract to purchase, or other person having an enforceable proprietary interest in such land.
DEVELOPMENT FEE
Money paid by a developer for the improvement of property as permitted in N.J.A.C. 5:97-8.3.
EQUALIZED ASSESSED VALUE
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 (C.54:1-35a through C.54:1-35c).
GREEN BUILDING STRATEGIES
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.
D. 
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 1/2% 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 "d" variance) has been permitted, developers shall be required to pay a development fee of 6% of the equalized assessed value for each additional unit that may be realized. However, if the zoning on a site has changed during the two-year period preceding the filing of such a variance application, the base density for the purposes of calculating the bonus development fee shall be the highest density permitted by right during the two-year period preceding the filing of the variance application.
[Example: If an approval allows four units to be constructed on a site that was zoned for two units, the fees could equal 1 1/2% 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 Burlington Township, and developments where the developer has made a payment in lieu of on-site construction of affordable units 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) 
Residential structures demolished and replaced as a result of a fire, flood, or natural disaster shall be exempt from paying a development fee.
(d) 
Development fees shall be imposed and collected when an existing structure undergoes a change to a more intense use, is demolished and replaced, or is expanded, if the expansion is not otherwise exempt from the development fee requirement. The development fee shall be calculated on the increase in the equalized assessed value of the improved structure.
(e) 
Developers of residential development with one or two owner-occupied dwelling units shall be exempt from paying a development fee.
(f) 
Properties that are designated as areas in need of redevelopment or rehabilitation under the Local Redevelopment and Housing Law[1] are exempt from the payment of development fees unless otherwise specified by redevelopment agreement or redevelopment ordinance.
[1]
Editor's Note: See N.J.S.A. 40A:12A-1 et seq.
E. 
Nonresidential development fees. [NOTE: It should be noted that pursuant to P.L. 2009, c. 90 and P.L. 2011, c. 122, the nonresidential statewide development fee of 2.5% for nonresidential development is suspended for all nonresidential projects that received preliminary or final site plan approval subsequent to July 17, 2008 until July 1, 2013, provided that a permit for the construction of the building has been issued prior to January 1, 2015.]
(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 structures to be used for nonresidential purposes.
(c) 
Development fees shall be imposed and collected when an existing structure is demolished and replaced. The development fee of 2.5% shall be calculated on the difference between the equalized assessed value of the preexisting land and improvement and the equalized assessed value of the newly improved structure, i.e. land and improvement, at the time final certificate of occupancy is issued. If the calculation required under this section results in a negative number, the nonresidential development fee shall be zero.
(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 development fee of 2.5%, unless otherwise exempted below.
(b) 
The fee of 2.5% shall not apply to an increase in equalized assessed value resulting from alterations, change in use within existing footprint, reconstruction, renovations and repairs.
(c) 
Nonresidential developments shall be exempt from the payment of nonresidential development fees in accordance with the exemptions required pursuant to P.L. 2008, c. 46, as specified in Form N-RDF, "State of New Jersey Non-Residential Development Certification/Exemption." 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 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.
(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 Burlington Township as a lien against the real property of the owner.
F. 
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 Non-Residential Development Certification/Exemption," to be completed as per the instructions provided. The developer of a nonresidential development shall complete Form N-RDF as per the instructions provided. The construction official shall verify the information submitted by the nonresidential developer as per the instructions provided in the Form N-RDF. The tax assessor shall verify exemptions and prepare estimated and final assessments as per the instructions provided in Form N-RDF.
(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 municipal 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 notifies the local 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 municipal assessor shall confirm or modify the previously estimated equalized assessed value of the improvements of the development; calculate the development fee; and thereafter notify the developer of the amount of the fee.
(7) 
Should Burlington 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 Subsection b of Section 37 of P.L. 2008, c. 46 (N.J.S.A. 40:55D-8.6).
(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 Burlington County Board of Taxation. Pending a review and determination by the Board, collected fees shall be placed in an interest bearing escrow account by Burlington Township. Appeals from a determination of the Board may be made to the tax court in accordance with the provisions of the State Tax Uniform Procedure Law, N.J.S.A. 54:48-1 et seq., within 90 days after the date of such determination. Interest earned on amounts escrowed shall be credited to the prevailing party.
(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 Burlington Township. Appeals from a determination of the Director may be made to the tax court in accordance with the provisions of the State Tax Uniform Procedure Law, N.J.S.A. 54:48-1 et seq., within 90 days after the date of such determination. Interest earned on amounts escrowed shall be credited to the prevailing party.
G. 
Affordable Housing Trust Fund.
(1) 
There is hereby created a separate, interest-bearing housing trust fund to be maintained by the chief financial officer for the purpose of depositing development fees collected from residential and nonresidential developers and proceeds from the sale of units with extinguished controls.
(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 municipally 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 Burlington Township's affordable housing program.
(3) 
Within seven days from the opening of the trust fund account, Burlington Township shall provide the Council with written authorization, in the form of a three-party escrow agreement between Burlington Township, the bank, and the Council to permit the Council to direct the disbursement of the funds as provided for in N.J.A.C. 5:97-8.13(b).
(4) 
All interest accrued in the housing trust fund shall only be used on eligible affordable housing activities approved by the Council.
H. 
Use of funds.
(1) 
The expenditure of all funds shall conform to a spending plan approved by the Council. Funds deposited in the housing trust fund may be used for any activity approved by the Council to address Burlington 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 apartment or market to affordable programs, conversion of existing nonresidential buildings to create new affordable units, green building strategies designed to be cost saving and in accordance with accepted national or state standards, purchase of land for affordable housing, improvement of land to be used for affordable housing, extensions or improvements of roads and infrastructure to affordable housing sites, financial assistance designed to increase affordability, administration necessary for implementation of the Housing Element and Fair Share Plan, or any other activity as permitted pursuant to N.J.A.C. 5:97-8.7 through 8.9 and specified in the approved spending plan.
(2) 
Funds shall not be expended to reimburse Burlington Township for past housing activities.
(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, and assistance with emergency repairs.
(b) 
Affordability assistance to households earning 30% or less of median income may include offering a subsidy to developers of inclusionary or one-hundred-percent affordable developments or 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.
(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.
(4) 
Burlington Township may contract with a private or public entity to administer any part of its Housing Element and Fair Share Plan, including the requirement for affordability assistance, in accordance with N.J.A.C. 5:96-18.
(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 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 Council's monitoring requirements. Legal or other fees related to litigation opposing affordable housing sites or objecting to the Council's regulations and/or action are not eligible uses of the affordable housing trust fund.
I. 
Monitoring. Burlington Township shall complete and return to the Council all monitoring forms included in monitoring requirements related to the collection of development fees from residential and nonresidential developers, payments in lieu of constructing affordable units on site, funds from the sale of units with extinguished controls, barrier free escrow funds, rental income, repayments from affordable housing program loans, and any other funds collected in connection with Burlington Township's housing program, as well as to the expenditure of revenues and implementation of the plan certified by the Council. All monitoring reports shall be completed on forms designed by the Council.
J. 
Ongoing collection of fees. The ability for Burlington Township to impose, collect and expend development fees shall expire with its substantive certification unless Burlington Township has filed an adopted Housing Element and Fair Share Plan with the Council, has petitioned for substantive certification, and has received the Council's approval of its development fee ordinance. If Burlington Township fails to renew its ability to impose and collect development fees prior to the expiration of substantive certification, it may be subject to forfeiture of any or all funds remaining within its municipal trust fund. Any funds so forfeited shall be deposited into the New Jersey Affordable Housing Trust Fund established pursuant to section 20 of P.L. 1985, c. 222 (N.J.S.A. 52:27D-320). Burlington Township shall not impose a residential development fee on a development that receives preliminary or final site plan approval after the expiration of its substantive certification or judgment of compliance, nor shall Burlington Township retroactively impose a development fee on such a development. Burlington Township shall not expend development fees after the expiration of its substantive certification or judgment of compliance.
[Added 2-14-2006 by Ord. No. 06-OR-002]
A. 
Residential development. Except as otherwise provided below, any residential development in the Township proposing more than eight lots or units shall set aside or otherwise provide for, as directed by Burlington Township in accordance with its fair share plan, 12.5% (rounded to the next higher number if 0.5% or greater) of said units for "affordable housing," as said term is defined under the FHA and COAH's rules.
B. 
Nonresidential development. All nonresidential development applications shall be required to pay the required development fee or produce one non-age-restricted affordable housing meeting COAH's eligibility criteria for every 25 new jobs or employment opportunities or portion thereof created in the Township as a result of the proposed nonresidential development project, as directed by the Burlington Township. The calculation of the number of jobs and employment opportunities shall be in accordance with Appendix E to N.J.A.C. 5:94-1 et seq., entitled "UCC Use Groups for Projection and Implementing Nonresidential Components of Growth Share."
C. 
Satisfaction of obligation. The applicant may satisfy its affordable housing production obligation(s) through the mechanisms provided in Burlington's fair share plan, permitted in COAH's rules, and as directed by Burlington Township, including a) on-site housing production in connection with residential projects; b) the purchase of an existing market-rate home at another location in the community and its conversion to an affordable price-restricted home in accordance with COAH's criteria, regulations and policies; c) the funding of a Regional Contribution Agreement ("RCA"); and/or d) participation in gut rehabilitation and/or buy-down/write-down, buy-down/rent-down expanded crediting programs in accordance with the Township's fair share plan. Evidence of a guaranteed, verifiable affordable housing production program shall be produced to the Planning or Zoning Board at the time of application filing and shall be a condition of all completeness determinations. Thereafter, evidence of satisfaction of affordable housing compliance shall be an automatic condition of all approvals that must be satisfied prior to the issuance of the project's first certificate of occupancy.
D. 
Low- and moderate-income split and compliance with COAH's rules. The affordable unit(s) produced in accordance with this chapter shall be available to a low-income individual or household should only one affordable unit be required. Thereafter, each of the units shall be split evenly between low- and moderate-income individuals and households, except in the event of an odd number, in which event the unit shall be a low-income unit. All affordable units shall strictly comply with COAH's rules and policies, including, but not limited to, phasing, bedroom distribution, controls on affordability, range of affordability, affirmative marketing, and income qualification. It shall be the developer's responsibility, at its cost and expense, to arrange for a COAH- and Township-approved qualification service to ensure full COAH compliance and file such certifications, reports and/or monitoring forms as may be required by COAH or the court to verify COAH compliance of each affordable unit.
E. 
Exemption. All growth share affordable units produced by virtue of this chapter shall be exempt from the payment of residential affordable housing development fees.
The provisions of this section shall not necessarily be applicable to any applications for development in the areas of the Township not designated for optional forms of development. However, any reviewing board may utilize its provisions, in agreement with an applicant, when it considers an applicant's request for development approval not in compliance with Township's otherwise controlling ordinances. Notwithstanding the foregoing, however, all development involving affordable housing shall be submitted to the Authority for review and imposition of provisions to ensure compliance with the affordable housing regulations of this article, the Fair Housing Act, and COAH.
This chapter shall be interpreted to carry out its stated purposes. Where a question exists over the meaning of any term or provision used which is unresolved after applying its purpose, the reviewing authority is to resort to the Fair Housing Act and to any COAH regulations or policies adopted to implement it.