[HISTORY: Adopted by the Mayor and Council of the Borough of Hopatcong 9-17-2008 by Ord. No. 22-2008. Amendments noted where applicable.]
Editor's Note: This ordinance also repealed former Ch. 57, Affordable Housing, which included Art. I, Mandatory Development Fees, adopted 7-20-2005 by Ord. No. 22-2005.
In Holmdel Builder's Association v. Holmdel, 121 N.J. 550 (1990), the New Jersey Supreme Court determined that mandatory development fees are authorized by the Fair Housing Act of 1985, N.J.S.A. 52:27D-301 et seq., and the State Constitution, subject to Council on Affordable Housing developing rules. The purpose of this article is to establish standards for the collection, maintenance and expenditure of development fees pursuant to COAH's rules. Fees collected pursuant to this article shall be used for the sole purpose of providing low- and moderate-income housing. This article shall be interpreted within the framework of COAH's rules on development fees.
As used in this article, the following terms shall have the meaning indicated:
- AFFORDABLE HOUSING DEVELOPMENT
- A development included in the Housing Element and Fair Share Plan, and includes, but it not limited to, an inclusionary development, a municipal construction project or a one-hundred-percent affordable development.
- The New Jersey Council on Affordable Housing.
- DEVELOPMENT FEES
- Money paid by an individual, person, partnership, association, company or corporation for the improvement of property as permitted in applicable statutes or COAH's rules.
- EQUALIZED ASSESSED VALUE
- The value of a property determined by the municipal Tax Assessor through a process designed to ensure that all property in the municipality is assessed at the same assessment ratio or ratios required by law. Estimates at the time of issuance of a building permit may be obtained utilizing estimates for construction cost. Final equalized assessed value will be determined at a project's completion by the municipal Tax Assessor.
- SUBSTANTIVE CERTIFICATION
- A determination by COAH approving a municipality's Housing Element and Fair Share Plan in accordance with the provisions of the Fair Housing Act and the rules and criteria as set forth herein. A grant of substantive certification may run for a period of 10 years beginning on the date that a municipality files its Housing Element and Fair Share Plan with the Council in accordance with N.J.S.A. 52:27D-313, but shall not extend beyond December 31, 2019.
All other definitions used in this article shall be as set forth in N.J.S.A. 52:27D-304.
Residential development fees.
Within all zoning districts, residential developers shall pay a development fee of 1 1/2% (0.015) of the equalized assessed value for residential development, provided no increased density is permitted.
If a "d" variance is granted pursuant to N.J.S.A. 40:55D-70(d)(5), then the additional residential units realized (above what is permitted by right under the existing zoning) will incur a bonus development fee of 6% rather than the development fee of 1 1/2%. However, if the zoning on a site has changed during the two-year period preceding the filing of the "d" variance application, the density for 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 "d" variance application.
Nonresidential development fees. All nonresidential developers shall pay a fee of 2 1/2% (0.025) of the equalized assessed value of the land and improvements for all new nonresidential construction on an unimproved lot or lots; or 2 1/2% (0.025) of the increase in equalized assessed value of the additions to existing structures to be used for nonresidential purposes. If a "d" variance is granted pursuant to N.J.S.A. 40:55D-70(d)(4), then the additional floor area realized (above what is permitted by right under the existing zoning) will incur a bonus development fee of 6% of the equalized assessed value or the appraised value on the document utilized for construction financing. However, if the zoning on a site has changed during the two-year period preceding the filing of the "d" variance application, the density for 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 "d" variance application.
Developers of low- and moderate-income units shall be exempt from paying development fees.
Expansion of existing residential structures shall be exempt, unless the expansion increases the existing living space by more than 50%.
Exemptions for all nonresidential development shall be as set forth in P.L. 2008, c.46.
Developers that are required to pay the development fees as provided for in this article shall pay the fee in effect at the time they apply for a final certificate of occupancy.
There is hereby created an interest-bearing housing trust fund in the name of Hopatcong Borough for the purpose of receiving development fees from residential and nonresidential developers. All development fees paid by developers pursuant to this article shall be deposited in this fund. No money shall be expended from the housing trust fund unless the expenditure conforms to a spending plan approved by COAH.
If COAH determines that the Borough of Hopatcong is not in conformance with COAH's rules on development fees, COAH is authorized to direct the manner in which all development fees collected pursuant to this article shall be expended. Such authorization is pursuant to this article, COAH's rules on development fees, and the written authorization from the governing body to the bank in which the housing trust fund is located.
Money deposited in the housing trust fund may be used for any activity approved by COAH for addressing the Borough of Hopatcong's low- and moderate-income housing obligation. Such activities may include, but are not necessarily limited to, housing rehabilitation, new construction, regional contribution agreements, the purchase of land for low- and moderate-income housing, assistance designed to render units to be more affordable to low- and moderate-income people, and administrative costs necessary to implement the Borough's housing element. The expenditure of all money shall conform to a spending plan approved by COAH.
At least 30% of the revenues collected shall be devoted to low- and moderate-income households in affordable units included in the municipal Fair Share Plan in accordance with the standards set forth in N.J.A.C. 5:97-8.8. Examples of such activities include, but are not limited to, down payment and closing assistance, low-interest loans and rental assistance.
No more than 20% of the revenues shall be expended on administrative costs necessary to develop, revise, or implement the housing plan element of the Borough Master Plan. Examples of eligible administrative activities include personnel, consultant services, space costs, consumable supplies, and rental or purchase of equipment directly associated with plan development or plan implementation.
Development fees shall not be expended to reimburse the Borough of Hopatcong for housing activities that preceded substantive certification.
The Borough shall complete and return to COAH all monitoring forms related to the collection of development fees, expenditures of revenues and implementation of the spending plan certified by COAH. Quarterly financial reports and annual program implementation and auditing reports shall be completed by the Borough on forms designed by COAH.
In the event that any of the conditions set forth in Subsection B below occur, COAH shall be authorized, on behalf of the Borough, to direct the manner in which all development fees collected pursuant to this article shall be expended. Should any such condition occur, such revenues shall immediately become available for expenditure at the direction of COAH upon the Borough Clerk's receipt of written notification from COAH that such a condition has occurred. In furtherance of the foregoing, the Borough shall, in establishing a bank account, ensure that the Borough has provided whatever express written authorization may be required by the bank to permit COAH to direct disbursement of such revenues from the account following the delivery to the bank of the aforementioned written notification provided by COAH to the Borough Clerk.
Occurrence of the following may result in COAH taking an action pursuant to N.J.A.C. 5:91-15.1:
Failure to submit a spending plan within the time limits imposed by COAH.
Failure to meet deadlines for information required by COAH in its review of this article, the Borough's housing element or spending plan.
Failure to address COAH's conditions for approval of a plan to spend development fees within the deadlines imposed by COAH.
Failure to address COAH's conditions for substantive certification within the deadlines imposed by COAH.
Failure to submit accurate monitoring reports within the time limits imposed by COAH.
Failure to implement the spending plan for development fees within the time limits imposed by COAH, or within reasonable extensions granted by COAH.
Expenditure of development fees on activities not permitted by COAH.
Other good cause demonstrating that the revenues are not being used for the intended purpose.
This article shall expire if:
COAH dismisses or denies the Borough's petition for substantive certification.
The Borough's substantive certification is revoked.
The substantive certification expires prior to the Borough's filing an adopted housing element with COAH, petitioning for substantive certification or receiving COAH's approval of this article.
[Added 12-17-2008 by Ord. No. 26-2008]
[Amended 5-20-2020 by Ord. No. 9-2020]
The purpose of this article is to create the administrative mechanisms needed for the execution of the Borough of Hopatcong's responsibility to assist in the provision of affordable housing pursuant to the Fair Housing Act of 1985 and to administer and enforce the short-term rental requirements of Chapter 189 of the Code of the Borough of Hopatcong.
As used in this article, the following terms shall have the meanings indicated:
- ADMINISTRATIVE AGENT
- The entity responsible for administering the affordability controls of some or all units in the affordable housing program for the Borough of Hopatcong to ensure that the restricted units under administration are affirmatively marketed and sold or rented, as applicable, only to low- and moderate-income households.
- MUNICIPAL HOUSING LIAISON
- The employee charged by the governing body with the responsibility for oversight and administration of the affordable housing program for the Borough of Hopatcong.
Establishment of position of Municipal Housing Liaison. There is hereby established the position of Municipal Housing Liaison for the Borough of Hopatcong.
Subject to the approval of the Council on Affordable Housing (COAH), the Municipal Housing Liaison shall be appointed by the governing body and may be a full- or part-time municipal employee.
The Municipal Housing Liaison shall be responsible for oversight and administration of the affordable housing program for the Borough of Hopatcong, including the following responsibilities, which may not be contracted out, exclusive of Subsection C(6) which may be contracted out:
Serving as the Borough of Hopatcong's primary point of contact for all inquiries from the state, affordable housing providers, administrative agents, and interested households;
Monitoring the status of all restricted units in the Borough of Hopatcong's Fair Share Plan;
Compiling, verifying, and submitting annual reports as required by COAH;
Coordinating meetings with affordable housing providers and administrative agents, as applicable;
Attending continuing education opportunities on affordability controls, compliance monitoring, and affirmative marketing as offered or approved by COAH;
Subject to approval by COAH, the Borough of Hopatcong may contract with or authorize a consultant, authority, government or any agency charged by the governing body, which entity shall have the responsibility of administering the affordable housing program of the Borough of Hopatcong, except for those responsibilities which may not be contracted out pursuant to Subsection C above. If the Borough of Hopatcong contracts with another entity to administer all or any part of the affordable housing program, including the affordability controls and Affirmative Marketing Plan, the Municipal Housing Liaison shall supervise the contracting administrative agent.
Compensation. Compensation shall be fixed by the governing body at the time of the appointment of the Municipal Housing Liaison.
Administrative powers and duties assigned to the Municipal Housing Liaison.
Conducting an outreach process to ensure affirmative marketing of affordable housing units in accordance with the Affirmative Marketing Plan of the Borough of Hopatcong and the provisions of N.J.A.C. 5:80-26.15; and
Providing counseling or contracting to provide counseling services to low- and moderate-income applicants on subjects such as budgeting, credit issues, mortgage qualification, rental lease requirements, and landlord/tenant law.
Soliciting, scheduling, conducting and following up on interviews with interested households;
Conducting interviews and obtaining sufficient documentation of gross income and assets upon which to base a determination of income eligibility for a low- or moderate-income unit;
Providing written notification to each applicant as to the determination of eligibility or noneligibility;
Requiring that all certified applicants for restricted units execute a certificate substantially in the form, as applicable, of either the ownership or rental certificates set forth in Appendices J and K of N.J.A.C. 5:80-26.1 et seq.;
Creating and maintaining a referral list of eligible applicant households living in the housing region and eligible applicant households with members working in the housing region where the units are located; and
Employing the random selection process as provided in the Affirmative Marketing Plan of the Borough of Hopatcong when referring households for certification to affordable units.
Furnishing to attorneys or closing agents forms of deed restrictions and mortgages for recording at the time of conveyance of title of each restricted unit;
Creating and maintaining a file on each restricted unit for its control period, including the recorded deed with restrictions, recorded mortgage and note, as appropriate;
Ensuring that the removal of the deed restrictions and cancellation of the mortgage note are effectuated and properly filed with the appropriate county's register of deeds or county clerk's office after the termination of the affordability controls for each restricted unit;
Communicating with lenders regarding foreclosures; and
Ensuring the issuance of continuing certificates of occupancy or certifications pursuant to N.J.A.C. 5:80-26.10.
Resale and rental:
Instituting and maintaining an effective means of communicating information between owners and the administrative agent regarding the availability of restricted units for resale or rental; and
Instituting and maintaining an effective means of communicating information to low- and moderate-income households regarding the availability of restricted units for resale or rerental.
Processing request from unit owners:
Reviewing and approving requests from owners of restricted units who wish to take out home equity loans or refinance during the term of their ownership;
Reviewing and approving requests to increase sales prices from owners of restricted units who wish to make capital improvements to the units that would affect the selling price, such authorizations to be limited to those improvements resulting in additional bedrooms or bathrooms and the cost of central air-conditioning systems; and
Processing requests and making determinations on requests by owners of restricted units for hardship waivers.
Securing annually lists of all affordable housing units for which tax bills are mailed to absentee owners and notifying all such owners that they must either move back to their unit or sell it;
Securing from all developers and sponsors of restricted units, at the earliest point of contact in the processing of the project or development, written acknowledgement of the requirement that no restricted unit can be offered, or in any other way committed, to any person, other than a household duly certified to the unit by the administrative agent;
The posting annually in all rental properties, including two-family homes, of a notice as to the maximum permitted rent together with the telephone number of the administrative agent where complaints of excess rent can be made;
Sending annual mailings to all owners of affordable dwelling units, reminding them of the notices and requirements outlined in N.J.A.C. 5:80-26.18(d)4;
Establishing a program for diverting unlawful rent payments to the municipality's affordable housing trust fund or other appropriate municipal fund approved by the DCA;
Creating and publishing a written operating manual, as approved by COAH, setting forth procedures for administering such affordability controls; and
Providing annual reports to COAH as required.
The administrative agent shall have authority to take all actions necessary and appropriate to carry out its responsibilities hereunder.