A.
Sections 213-16B through and including 213-34 shall be applicable to all affordable housing developments that have received preliminary site plan approval prior to July 10, 1996, and to all affordable housing developments receiving preliminary site plan approval on or after July 10, 1996, except where inconsistent with §§ 213-35 through 213-39. Sections 213-35 through 213-39 shall be applicable, where inconsistent with §§ 213-16B through 213-34, to all affordable housing developments receiving preliminary site plan approval on or of after July 10, 1996.
B.
To assure that newly constructed low- and moderate-income sales units
remain affordable to low- and moderate-income households for not less
than 20 years, the Township shall require all conveyances of newly
constructed low- and moderate-income sales units subject to the Act
to contain a restrictive covenant and mortgage lien adopted by COAH,
attached hereto as Exhibit 1. (Exhibit 1 is on file in the Township
offices.)
A.
The initial price of a low- and moderate-income owner-occupied single-family
housing unit shall be established so that after a down payment of
10%, the monthly principal, interest, taxes, insurance and condominium
fees (if any) do not exceed 28% of an eligible gross monthly income.
The Township shall require that master deeds of inclusionary developments
regulate condominium or homeowner association fees or special assessments
of low- and moderate-income purchasers at a specific percentage of
those paid by market purchasers. Once established within the master
deed, the percentage shall not be amended without prior approval from
COAH. In making these calculations, the following considerations shall
govern:
(1)
Mortgage payments shall be determined on the basis of a thirty-year
fixed rate mortgage at the prevailing interest rates obtainable from
at least two major lenders active in Passaic County.
(2)
Property taxes shall be determined by applying the equalized property
tax rate in Wayne Township currently in effect to the proposed selling
price of the unit.
(3)
The developer shall use the best available assumptions to determine
the insurance and homeowner's association fees to be applied
to the units, subject to the approval of the Administrator as to reasonableness
only for use in this calculation.
(4)
Homeowner's association fees shall be set at a specific percentage
of those paid by market purchasers. This percentage must be included
in the master deed of any inclusionary development.
B.
The average price of low- and moderate-income units within an inclusionary
development shall be, as best as practicable, affordable to households
at 57.5% of median income as contained in N.J.A.C. 5:92-12.4.
C.
Developers shall offer a pricing stratification which will, as best
as practicable, provide the following distribution of prices for purchased
housing for every 20 low- and moderate-income units:
Type of Units
|
Proposed Pricing Stratification
|
---|---|
Low-income
|
1 at 40 through 42.5 percent
3 at 42.6 through 47.5 percent
6 at 47.6 through 50 percent
|
Moderate-income
|
1 at 50.1 through 57.5 percent
1 at 57.6 through 64.5 percent
1 at 64.6 through 68.5 percent
1 at 68.6 through 72.5 percent
2 at 72.6 through 77.5 percent
4 at 77.6 through 80 percent
|
D.
If fewer than 20 low- and moderate-income units are required to be built as part of an inclusionary development of purchased housing, comparable distribution of prices as set forth in Subsection C above shall be achieved.
E.
For initial occupancy, priority shall be given to households that fall within the median income categories delineated in Subsection C above.
F.
The Township shall require that rents of low- and moderate-income
rental units, including an allowance for utilities consistent with
the personal benefit expense allowance for utilities defined by HUD
or similar allowance approved by COAH shall be set so as not to exceed
30% of the gross monthly income of the appropriate household size.
Maximum rent shall be calculated as a percentage of either the low-
or moderate-income limit as adopted by COAH or other recognized standard
adopted by COAH that applies to the rental housing unit. At least
50% of all rental units shall be affordable to low-income households.
G.
The following criteria shall be considered in determining rents and
sale 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.
H.
Low- and moderate-income limits by household size shall be set in
accordance with the standards adopted by COAH.
The price of an owner-occupied housing unit and the rents of
affordable housing units may increase annually based on the percentage
increase in median income for the region as determined from the uncapped
Section 8 income limits, published by HUD, as defined in N.J.A.C.
5:92-1.3 (Appendix D) or other recognized standard adopted by COAH.
A.
Persons wishing to sell affordable units shall notify the Township
of the intent to sell by certified mail. If no eligible buyer enters
a contract of sale for the unit within 90 days of notification, the
Township shall have the option to purchase the unit for the maximum
price permitted based on the regional increase in median income as
defined by HUD or other recognized standard adopted by COAH. If the
Township 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 shall document efforts to sell the unit
to an income-eligible household as part of this application. 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.
B.
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 terms of this chapter.
C.
The resale price of an owner-occupied housing unit shall be the base
price increased pursuant to the following formula. The price approved
by the Board at which the seller acquired the property shall be the
base price. The base price shall be multiplied by 100% plus the percentage
increase in the HUD uncapped median income by family size for Passaic
County from the time of acquisition of the property to the date that
notice of intent to sell is given to the Board. For example, if the
base price is $30,000 and the median income at the time of the initial
acquisition is $32,000 and at the time of the resale transaction the
median income has increased 25% to $40,000, then the resale price
is as follows:
100/100 + 25/100 = 1.25
30,000 x 1.25 = 37,500
D.
At resale, all items of property which are permanently affixed to
the units and/or were included when the unit was initially restricted
(e.g., refrigerator, freezer, washer and dryer) shall be included
in the maximum allowable resale price. Items of personal property
which are not permanently affixed to the unit and which were not included
when the affordable housing unit was purchased may be the subject
of separate negotiations between the parties subsequent to the signing
of the contract for the purchase of the house. Any agreed price for
the purchase of any item or items of personal property shall be reasonable
considering the original cost, nature, age and condition of the item.
The price to be paid for items of personal property shall not be used
as a mechanism to avoid or circumvent the limitations on the resale
price of the unit itself. In no event shall the right to purchase
the unit be conditioned upon the buyer's willingness to agree
to purchase any item or items of personal properties of the seller.
Property owners of single-family, owner-occupied housing may
apply to the Affordable Housing Board for permission to increase the
maximum price for eligible capital improvements. Eligible capital
improvements shall only be those which, pursuant to N.J.A.C. 5:92-12.8,
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 Township if an increase in the maximum sales price is sought.
Upon request of an owner of an affordable housing unit the Board shall
consider within 30 days whether to grant prior approval of an improvement
and to approve a specific dollar amount up to the amount actually
expended for that improvement.
A.
Any mortgage for a low- or moderate-income unit shall contain a provision
requiring the holder of a mortgage on the property to inform the Board
at any time that the purchaser of a unit is 45 days or more in arrears
on payment of his/her mortgage payments. The Board shall further be
notified by the mortgagee in the event of institution of a foreclosure
action. This notification provision does not apply to any mortgage
which prohibits notice to a third party.
B.
The Board shall at all times have the right to move to intervene
in any foreclosure action. In addition, the Board shall have the right
to advance and pay all sums necessary to cure any arrears, to cure
any other default or exercise any right of redemption or pay and satisfy
any first mortgage or other lien so that the unit may be preserved
and retained as a low- or moderate-income unit. All sums advanced
by the Board shall become a lien against the unit and shall have higher
priority than any lien except that of a first mortgage and tax or
other liens held by any government agencies.
C.
A judgment of foreclosure or a deed in lieu of foreclosure by a financial institution regulated by state and/or federal law or by a lender on the secondary mortgage (including but not limited to the Federal National Mortgage Association, the Home Loan Mortgage Corporation, the Government National Mortgage Association or entities acting on their behalf) shall extinguish controls on affordable housing units, provided that there is compliance with § 213-19. Notice of foreclosure shall allow the Township, the Department of Community Affairs, the Agency or a qualified nonprofit to purchase the affordable housing unit at the maximum permitted sales price and maintain it as an affordable unit for the balance of the intended period of controls.
In the event of a foreclosure sale, the owner of the affordable
housing unit shall be personally obligated to pay to the Township
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.
A.
The following transactions shall be deemed nonsales for the purpose
of this chapter. The owner of the affordable unit shall be entitled
to a statement of exemption from the Board upon application.
(1)
Transfer of an affordable housing unit between husband and wife.
(2)
Transfer of ownership of an affordable housing unit between former
spouses as a result of a judicial decree, judgment or order of divorce,
but not including sales to third parties.
(3)
Transfer of ownership of an affordable housing unit as a result of
inheritance.
(4)
Transfer of ownership of an affordable housing unit through an order
of the Superior Court.
B.
A grant of exemption shall not eliminate the resale control restriction
set forth in these regulations. Any subsequent sale shall be subject
to all of the terms of this chapter.
A.
The Township shall not issue a certificate of occupancy for initial
occupancy of a low- or moderate-income sales unit or building containing
a low- or moderate-income rental unit(s) unless there is a written
determination by the Township that the unit is to be controlled by
a deed restriction and mortgage lien as adopted and approved by COAH.
There is no provision in this chapter for the issuance of a temporary
certificate of occupancy. The Township shall make such determination
within 21 days of receipt of a proposed deed restriction and lien.
A request to COAH for an amendment to the deed restriction and lien
may be made by the Township, its designee or a developer.
B.
The Township shall not permit the initial occupancy of a low-or moderate-income sales or rental unit(s) prior to issuance of a certificate of occupancy in accordance with Subsection A above.
C.
A certificate of reoccupancy of a low- or moderate-income sales unit
resulting from a resale is required and such certificate shall not
be issued unless there is a written determination by the Township
that the unit is to be controlled by the deed restriction and mortgage
lien. The Township shall make such determination within 21 days of
receipt of a proposed deed restriction and mortgage lien.
D.
The certificate of reoccupancy shall not be required in sales for which controls are allowed to expire or in which the repayment option is being exercised pursuant to § 213-27.
E.
The mortgage lien and the restrictive covenant shall be filed with
the records office of Passaic County. The form of the lien and restrictive
covenants shall be in accordance with N.J.A.C. 5:92-12, Appendix.
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 20 years. The option to buy shall be
available to the municipality, the Department of Community Affairs,
the 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 Township by certified mail of
any intent to sell the unit 90 days after controls have been in effect
on the housing unit for 20 years.
C.
Upon receipt of such notice, the option to buy the unit at the maximum
allowable restricted sales price shall be available for 90 days. The
Township shall notify the Department of Community Affairs, the Agency
and COAH that the unit is for sale. If the Township exercises this
option, it may enter into a contract of sale. 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 90
day period shall be entitled to purchase the unit. If the option to
purchase the unit at the maximum allowable restricted sales price
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 the delivery of 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.
The Township may elect to purchase a low- or moderate-income unit pursuant to § 213-27. Upon purchase the Township may:
A.
Convey or rent the housing unit to a low- or moderate-income purchaser
or tenant at a price or rent not to exceed the maximum allowable restricted
sales price or rental for a period of up to 20 years; or
B.
Convey the unit at fair market value subject to the provisions listed
below. The Township shall:
(1)
Notify COAH of any proposed sale and sales price 90 days before closing;
(2)
Notify COAH of the price differential as defined in N.J.A.C. 5:92-1.3;
(3)
Deposit the price differential in the Wayne Township Affordable Housing
Trust Fund; and
(4)
Notify COAH by February 1 of each calendar year of the balance within
the Affordable Housing Trust Fund.
C.
Money deposited in the Affordable Housing Trust Fund from such sale
may not be expended until the Township submits a repayment housing
plan which provides a realistic opportunity for the creation, rehabilitation
or maintenance of low- and moderate-income housing.
When the Department of Community Affairs or Agency elects to
purchase a low- or moderate-income unit pursuant to N.J.A.C. 5:92-12.3,
it may:
A.
Convey or rent the housing unit to a low- or moderate-income purchaser
or tenant at a price or rent not to exceed the allowable restricted
sales prices or rental; or
B.
Convey the unit at fair market value and utilize the price differential
to subsidize the construction, rehabilitation or maintenance of low-
and moderate-income housing within the Bergen, Hudson, Passaic Counties
Housing Region.
A.
Nonprofit agencies may apply to COAH at any time for the right to
purchase low- or moderate-income units subsequent to the period of
controls on affordability of up to 20 years.
B.
Nonprofit agencies that have been designated by COAH shall be eligible to purchase low- or moderate-income units pursuant to § 213-27 for the sole purpose of conveying or renting the housing unit to a low- or moderate-income purchaser or tenant at a price or rent not to exceed the allowable restricted sales price or rental. Low-income units shall be made available to low-income purchasers or tenants, and the housing unit shall be regulated by the restrictive covenant and lien adopted by COAH. The term of the controls on affordability shall be for 20 years.
B.
Subject to § 213-32, the seller may elect to:
(1)
Sell to a qualified low- or moderate-income household at the controlled unit sales price in accordance with existing COAH rules, provided that the unit is regulated by the restrictive covenant and lien as per § 213-26 for a period of 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
Township at closing.
C.
If the sale will be to a qualified low- or moderate-income household,
the Township 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 Township shall examine any control 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 Township may rely on comparable sales data
or an appraisal. The Township shall not approve any contract of sale
where there is a determination that the sales price does not hear
a reasonable relationship to fair market value. The Township shall
make a determination within 20 days of receipt of the contract of
sale and shall calculate the repayment option payment.
E.
The Township shall adopt an appeal procedure from the finding of
fair market value whereby the seller may submit written documentation
requesting the Township 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 Township.
F.
The repayment shall occur at the date of closing and transfer of
title for the first nonexempt transaction after the expiration of
controls on affordability.
G.
Repayment proceeds shall be deposited in the Affordable Housing Trust
Fund and is to be devoted solely to 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 on 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 within the municipality beyond the period required by § 213-34. Such determination shall be made by resolution of the Township Council and shall be effective upon filing with the Court or its designee. 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 § 213-31.
When a housing unit has been maintained as a low- or moderate-income
unit after controls have been in effect for 20 years, the restrictive
covenant governing the housing units shall allow municipalities, the
state, nonprofit agencies and sellers of low- and moderate-income
units to again exercise all the same options as provided in this chapter.
A.
Rehabilitated owner-occupied single-family housing units that are
improved to code standard shall be subject to affordability controls
for at least six years.
B.
Rehabilitated renter-occupied housing units that are improved to
code standard shall be subject to affordability controls for 10 years.
C.
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, the Township shall require the owner of the unit to rent
the unit in accordance with the zoning established for the sites pursuant
to the Fair Share Plan.
D.
Housing unit(s) created through conversion of a nonresidential structure
shall be considered a new housing unit and shall be subject to these
controls on affordability.
To assure that newly constructed low- and moderate-income sales
units remain affordable to low- and moderate-income households for
not less than 30 years, the Township shall require all conveyances
of newly constructed low- and moderate-income sales units subject
to the Act to contain a restrictive covenant and mortgage lien adopted
by COAH, attached hereto as Exhibit 1. (Exhibit 1 is on file in the
Township offices.)
A.
The initial price of a low- and moderate-income owner-occupied single-family
housing unit shall be established so that after a down payment of
5%, the monthly principal, interest, taxes, insurance and condominium
fees (if any) do not exceed 28% of an eligible gross monthly income.
The Township shall require that master deeds of inclusionary developments
regulate condominium or homeowner association fees or special assessments
of low- and moderate-income purchasers at a specific percentage of
those paid by market purchasers. Once established within the master
deed, the percentage shall not be amended without prior approval from
COAH. In making these calculations, the following considerations shall
govern:
(1)
Mortgage payments shall be determined on the basis of a thirty-year
fixed rate mortgage at the prevailing interest rates obtainable from
at least two major lenders active in Passaic County.
(2)
Property taxes shall be determined by applying the equalized property
tax rate in Wayne Township currently in effect to the proposed selling
price of the unit.
(3)
The developer shall use the best available assumptions to determine
the insurance and homeowners' association fees to be applied
to the units, subject to the approval of the Administrator as to reasonableness
only for use in this calculation.
(4)
Homeowners' association fees shall be set at a specific percentage
of those paid by market purchasers. This percentage must be included
in the master deed of any inclusionary development and shall not be
less than 33.3% of the market purchaser's association fees.
B.
Bedroom distribution.
(1)
Inclusionary developments that are not restricted to senior citizens
shall be structured in conjunction with realistic market demands so
that:
(2)
Low- and moderate-income units restricted to senior citizens may
utilize a modified bedroom distribution. At a minimum, the number
of bedrooms shall equal the number of senior citizen low- and moderate-income
units within the inclusionary development. The standard can be met
by creating all one-bedroom units or by creating a two-bedroom unit
for each efficiency unit. Applications to waive this standard shall
be made in accordance with N.J.A.C. 5:93 and shall be referred by
the Council to the DCA Division on Aging for review and recommendations.
C.
The following criteria, in conjunction with realistic market information,
shall be used in determining maximum rents and sale prices:
(1)
Efficiency units shall be affordable to one-person households.
(2)
All one-bedroom units shall be affordable to one-and-one-half-person
households.
(3)
All two-bedroom units shall be affordable to three-person households.
(4)
All three-bedroom units shall be affordable to four-and-one-half-person
households.
D.
All affordable owner-occupied and rental units shall be required
to utilize the same heating source as market units within the inclusionary
development.
A.
The price of an owner-occupied housing unit and the rents of affordable
housing 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 authority
be lower than the last recorded purchase price.
B.
With the exception of rentals constructed pursuant to low-income
tax credit regulations, the rent of a low- or moderate-income housing
unit may be increased annually based on the percentage increase in
the Housing Consumer Price Index for the United States. This increase
shall not exceed 9% in any one year. Rents for units constructed pursuant
to low income tax credit regulations shall be indexed pursuant to
the regulations governing low income tax credits.
A.
Low- and moderate-income sales units shall not be offered to non-income-eligible
households at initial sale without Council approval. Parties that
petition the Council for such approval shall document efforts to sell
housing units to income-eligible households and shall adhere to the
procedures outlined in N.J.A.C. 5:91-12.
B.
Persons wishing to sell affordable units shall notify the Township
of the intent to sell. If no eligible buyer enters a contract of sale
for the unit within 90 days of notification, the Township shall have
the option to purchase the unit for a negotiated price that shall
not exceed the maximum price permitted based on the regional increase
in the median income as defined by HUD or other recognized standard
adopted by the Council. If the Township 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 shall document
efforts to sell the unit to an income-eligible household as part of
this application. In reviewing the request, the Township shall consider
the specific reasons for any delay in selling the housing unit and
the hardship to the seller in continuing to offer the affordable unit
to an income-eligible applicant. The inability to sell a unit for
the maximum permitted resale price shall not, in itself, be considered
an appropriate reason for allowing a housing unit to be sold to a
non-income-eligible household. If the request is granted, the seller
may offer a low-income housing unit to a moderate-income household
and a moderate-income housing unit to a household earning in excess
of 80% of the 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 subsection.
C.
Owners of low- and moderate-income rental units shall not offer rental
units to non-income-eligible households without prior approval of
the Council. Parties that petition for such approval shall document
all efforts to rent to income-eligible households and demonstrate
to the satisfaction of the Council that alternatives, such as a reduction
in rent, is not feasible. Parties that petition the Council shall
adhere to the procedures outlined in N.J.A.C. 5:91-12.