[HISTORY: Adopted by the Mayor and Council
of the Borough of Fanwood 12-5-2016 by Ord. No. 16-16R.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also provided for the repeal
of former Ch. 105, Affordable Housing, Art. I, Affirmative Marketing
Plan, adopted 5-18-2000 by Ord. No. 00-08R.
A.
Purpose. The purpose of these provisions is to provide a realistic
opportunity for the construction of Fanwood Borough's constitutional
obligation to provide for its fair share of affordable housing for
households with low and moderate incomes, as directed by the Superior
Court of New Jersey and is consistent with N.J.A.C. 5:93-1 et seq.,
as amended and supplemented by N.J.A.C. 5:80-26.1 et seq. and N.J.S.A.
52:27D-301 et seq.
B.
Applicability. The provisions of this chapter shall apply:
(1)
To all affordable housing developments and affordable housing units
that currently exist within Fanwood Borough;
(2)
To all affordable housing developments and affordable housing units
that are proposed to be created pursuant to the Fanwood Borough Housing
Element and Fair Share Plan;
(3)
To all unanticipated future developments that will provide affordable
housing for low- and moderate-income households; and
(4)
To: (a) any property in Fanwood Borough that is currently zoned for
nonresidential uses and that is subsequently rezoned for multifamily
residential purposes; (b) all approvals for multifamily residential
development granted by the Fanwood Borough Planning Board or Zoning
Board of Adjustment, including approvals of use or density variances,
site plans, or subdivisions; and (c) redevelopment projects subject
to a redevelopment plan adopted by the Borough governing body governing
the development and redevelopment of designated areas in need of rehabilitation
or areas in need of redevelopment in the Borough, including substantial
revisions to previously approved developments, where such rezoning,
approval, redevelopment plan or revision results in or increases the
number of residential units by five or more units.
The following terms, when used in this chapter, shall have the
following meanings:
The Fair Housing Act of 1985, P.L. 1985, c. 222 (N.J.S.A.
52:27D-301 et seq.).
Constructed in compliance with the technical design standards
of the Barrier Free Subcode, N.J.A.C. 5:23-7.
The entity designated by the Borough to administer affordable
units in accordance with this chapter, N.J.A.C. 5:93, and UHAC (N.J.A.C.
5:80-26).
A regional marketing strategy designed to attract buyers
and/or renters of affordable units pursuant to N.J.A.C. 5:80-26.15.
The average percentage of median income at which new restricted
units in an affordable housing development are affordable to low-
and moderate-income households.
A sales price or rent level that is within the means of a
low- or moderate-income household as defined within N.J.A.C. 5:93-7.4,
and, in the case of an ownership unit, that the sales price for the
unit conforms to the standards set forth in N.J.A.C. 5:80-26.6, as
may be amended and supplemented, and, in the case of a rental unit,
that the rent for the unit conforms to the standards set forth in
N.J.A.C. 5:80-26.12, as may be amended and supplemented.
A development included in or approved pursuant to the Housing
Element and Fair Share Plan or otherwise intended to address the Borough's
fair share obligation and includes, but is not limited to, an inclusionary
development, a municipal construction project or a 100% affordable
housing development.
Any mechanism in a municipal Fair Share Plan prepared or
implemented to address a municipality's fair share obligation.
A housing unit proposed or created pursuant to the Act and
approved for crediting by COAH, its successor entity, or the Court
and/or funded through an affordable housing trust fund.
A housing unit designed to meet the needs of, and exclusively
for, the residents of an age-restricted segment of the population
such that:
All the residents of the development wherein the unit is situated
are 62 years of age or older; or
At least 80% of the units are occupied by one person who is
55 years of age or older; or
The development has been designated by the Secretary of the
United States Department of Housing and Urban Development as "housing
for older persons" as defined in Section 807(b)(2) of the Fair Housing
Act, 42 U.S.C. § 3607.
The New Jersey Housing and Mortgage Finance Agency established
by P.L. 1983, c. 530 (N.J.S.A. 55:14K-1 et seq.).
A structure in which households live in distinct bedrooms,
yet share kitchen and plumbing facilities, central heat and common
areas. Alternative living arrangements include, but are not limited
to: transitional facilities for the homeless; Class A, B, C, D and
E boarding homes as regulated by the DCA; residential health care
facilities as regulated by the New Jersey Department of Health; group
homes for the developmentally disabled and mentally ill as licensed
and/or regulated by the New Jersey Department of Human Services; and
congregate living arrangements.
A facility that is licensed by the New Jersey Department
of Health and Senior Services to provide apartment-style housing and
congregate dining and to assure that assisted living services are
available when needed for four or more adult persons unrelated to
the proprietor and that offers units containing, at a minimum, one
unfurnished room, a private bathroom, a kitchenette and a lockable
door on the unit entrance.
A household that has been certified by an Administrative
Agent as a low-income household or moderate-income household.
The Council on Affordable Housing, as established by the
New Jersey Fair Housing Act (N.J.S.A. 52:27D-301 et seq.) or its successor
entity.
The State of New Jersey Department of Community Affairs.
A housing unit with health and safety code violations that
requires the repair or replacement of a major system. A major system
includes weatherization, roofing, plumbing (including wells), heating,
electricity, sanitary plumbing (including septic systems), lead paint
abatement and/or load bearing structural systems.
Any person, partnership, association, company or corporation
that is the legal or beneficial owner or owners of a lot or any land
included in a proposed development, including the holder of an option
to contract to purchase, or other person having an enforceable proprietary
interest in such land.
The division of a parcel of land into two or more parcels,
the construction, reconstruction, conversion, structural alteration,
relocation, or enlargement of any use or change in the use of any
building or other structure, or of any mining, excavation or landfill,
and any use or change in the use of any building or other structure,
or land or extension of use of land, for which permission may be required
pursuant to N.J.S.A. 40:55D-1 et seq.
Money paid by a developer for the improvement of property
as permitted in N.J.A.C. 5:97-8.3.
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.
A development containing both affordable units and market
rate units. This term includes, but is not limited to: new construction,
the conversion of a nonresidential structure to residential use and
the creation of new affordable units through the gut rehabilitation
or reconstruction of a vacant residential structure.
A household with a total gross annual household income equal
to 50% or less of the median household income.
A restricted unit that is affordable to a low-income household.
The primary structural, mechanical, plumbing, electrical,
fire protection, or occupant service components of a building which
include, but are not limited to, weatherization, roofing, plumbing
(including wells), heating, electricity, sanitary plumbing (including
septic systems), lead paint abatement and load-bearing structural
systems.
Housing not restricted to low- and moderate-income households
that may sell or rent at any price.
The median income by household size for the applicable housing
region, as adopted annually by COAH or a successor entity approved
by the Court.
A household with a total gross annual household income in
excess of 50% but less than 80% of the median household income.
A restricted unit that is affordable to a moderate-income
household.
A residential development that is located in buildings that
contain five or more dwelling units, including, but not limited to,
dwelling units that are located one over another, garden apartments,
townhouse developments, multistory apartment or condominium buildings,
and mixed-use developments containing a combination of nonresidential
and residential uses.
Any sale or transfer of ownership other than the transfer
of ownership between husband and wife; the transfer of ownership between
former spouses ordered as a result of a judicial decree of divorce
or judicial separation, but not including sales to third parties;
the transfer of ownership between family members as a result of inheritance;
the transfer of ownership through an executor's deed to a Class
A beneficiary and the transfer of ownership by court order.
A process by which currently income-eligible households are
selected for placement in affordable housing units such that no preference
is given to one applicant over another except for purposes of matching
household income and size with an appropriately priced and sized affordable
unit (e.g., by lottery).
The maximum housing value in each housing region affordable
to a four-person household with an income at 80% of the regional median
as defined by duly adopted regional income limits published annually
by COAH or a successor entity.
The repair, renovation, alteration or reconstruction of any
building or structure, pursuant to the Rehabilitation Subcode, N.J.A.C.
5:23-6.
The gross monthly cost of a rental unit to the tenant, including
the rent paid to the landlord, as well as an allowance for tenant-paid
utilities computed in accordance with allowances published by the
DCA for its Section 8 program. In assisted living residences, rent
does not include charges for food and services.
A dwelling unit, whether a rental unit or an ownership unit,
that is subject to the affordability controls of N.J.A.C. 5:80-26.1,
as amended and supplemented, but does not include a market-rate unit
financed under the Agency's Urban Home Ownership Recovery Program
(UHORP) or Market Oriented Neighborhood Investment program (MONI).
The Uniform Housing Affordability Controls set forth in N.J.A.C.
5:80-26.1 et seq.
A household with a total gross annual household income equal
to 30% or less of the median household income for the applicable housing
region.
A restricted unit that is affordable to a very low-income
household.
Building insulation (for attic, exterior walls and crawl
space), siding to improve energy efficiency, replacement storm windows,
replacement storm doors, replacement windows and replacement doors,
and is considered a major system for purposes of a rehabilitation
program.
Certificates of occupancy for developments which include affordable
housing units shall be subject to the following additional provisions:
A.
Phasing schedule for inclusionary development. Affordable housing
units shall be built, occupied and receive certificates of occupancy
in accordance with the following schedule:
|
Maximum Percentage of Market-Rate Units Completed
|
Minimum Percentage of Low- and Moderate-Income Units Completed
|
|---|---|
|
25%
|
0%
|
|
25% + 1
|
10%
|
|
50%
|
50%
|
|
75%
|
75%
|
|
90%
|
100%
|
B.
No initial occupancy of a low- or moderate-income housing sales unit
shall be permitted prior to issuance of a certificate of occupancy,
and no certificate of occupancy for initial occupancy of a low- or
moderate-income housing sales unit shall issue unless there is a written
determination by the Administrative Agent that the unit is to be controlled
by a deed restriction and mortgage lien as adopted by COAH or its
successor entity.
C.
A certificate of reoccupancy for any occupancy of a low- or moderate-income
housing sales unit resulting from a resale shall be required, and
the Borough shall not issue such certificate unless there is a written
determination by the Administrative Agent that the unit is to be controlled
by the deed restriction and mortgage lien required by COAH or its
successor entity.
D.
The certificate of reoccupancy shall not be required where there
is a written determination by the Administrative Agent that controls
are allowed to expire or that the repayment option is being exercised
pursuant to N.J.A.C. 5:92-12.3.
A.
Municipal Housing Liaison.
(1)
Fanwood Borough shall appoint a specific municipal employee to serve
as a Municipal Housing Liaison responsible for administering the affordable
housing program, including affordability controls, the Affirmative
Marketing Plan, monitoring and reporting, and, where applicable, supervising
any contracted Administrative Agent. Fanwood Borough shall adopt an
ordinance creating the position of Municipal Housing Liaison and shall
adopt a resolution appointing said Municipal Housing Liaison. 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 approved by COAH, its successor entity, or
the Court and shall be duly qualified through a training program sponsored
by affordable housing professionals of New Jersey before assuming
the duties of Municipal Housing Liaison.
(2)
The Municipal Housing Liaison shall be responsible for oversight
and administration of the affordable housing program for Fanwood Borough,
including the following responsibilities which may not be contracted
out to the Administrative Agent:
[Amended 3-6-2017 by Ord.
No. 17-03R]
(a)
Serving as Fanwood Borough's primary point of contact for
all inquiries from the state, affordable housing providers, Administrative
Agents and interested households;
(b)
Monitoring the status of all restricted units in Fanwood Borough's
Fair Share Plan;
(c)
Compiling, verifying and submitting annual monitoring reports
as may be required by COAH, its successor entity, or the Court, including
the following:
[1]
Providing annual reporting of the status of all affordable housing
activity within the Borough through posting on the municipal website
with a copy of such posting provided to the Fair Share Housing Center,
using forms previously developed for this purpose by the Council on
Affordable Housing;
[2]
Providing for the midpoint realistic opportunity review due
on July 1, 2020, as required pursuant to N.J.S.A. 52:27D-313, a status
report as to the Borough's implementation of its Plan and an
analysis of whether any unbuilt sites or unfulfilled mechanisms continue
to present a realistic opportunity and whether the mechanisms to meet
unmet needs, as stated in the Borough's Housing Element and Fair
Share Plan, should be revised or supplemented through posting on the
municipal website, with a copy of such posting provided to the Fair
Share Housing Center; and
[3]
Providing on every third year reporting as to the Borough's
satisfaction of its very-low-income requirements, including the family
very-low-income requirements, as stated in the Borough's Housing
Element and Fair Share Plan, through posting on the municipal website
with a copy of such posting provided to the Fair Share Housing Center.
(d)
Coordinating meetings with affordable housing providers and
Administrative Agents, as needed; and
(e)
Attending continuing education opportunities on affordability
controls, compliance monitoring and affirmative marketing at least
annually and more often as needed.
(3)
Subject to the approval of COAH, its successor entity, or the Court,
Fanwood Borough shall designate one or more Administrative Agent(s)
to administer newly constructed affordable units in accordance with
the UHAC. An operating manual for each affordable housing program
shall be provided by the Administrative Agent(s) to be adopted by
resolution of the governing body and subject to approval of COAH,
its successor entity, or the Court. The operating manual(s) shall
be available for public inspection in the office of the Borough Clerk,
in the office of the Municipal Housing Liaison, and in the office(s)
of the Administrative Agent(s). The Municipal Housing Liaison shall
supervise the contracting Administrative Agent(s).
B.
Administrative agent.
(1)
The Administrative Agent shall be an independent entity serving under
contract and reporting to the municipality. The fees of the Administrative
Agent shall be paid by the owners of the affordable units for which
the services of the Administrative Agent are required. The Administrative
Agent shall perform the duties and responsibilities of an Administrative
Agent as set forth in the UHAC, including those set forth in N.J.A.C.
5:80-26.14, 16 and 18 thereof, which include:
(a)
Affirmative marketing:
[1]
Conducting an outreach process to affirmatively market affordable
housing units in accordance with the Affirmative Marketing Plan of
Fanwood Borough and the provisions of N.J.A.C. 5:80-26.15; and
[2]
Providing counseling or contracting to provide counseling services
to low- and moderate-income applicants on subjects such as budgeting,
credit issues, mortgage qualification, rental lease requirements,
and landlord/tenant law.
(b)
Household certification:
[1]
Soliciting, scheduling, conducting and following up on interviews
with interested households;
[2]
Conducting interviews and obtaining sufficient documentation
of gross income and assets upon which to base a determination of income
eligibility for a low- or moderate-income unit;
[3]
Providing written notification to each applicant as to the determination
of eligibility or noneligibility;
[4]
Requiring that all certified applicants for restricted units
execute a certificate substantially in the form, as applicable, of
either the ownership or rental certificates set forth in Appendices
J and K of N.J.A.C. 5:80-26.1 et seq.;
[5]
Creating and maintaining a referral list of eligible applicant
households living in the housing region and eligible applicant households
with members working in the housing region where the units are located;
and
[6]
Employing a random selection process as provided in the Affirmative
Marketing Plan of Fanwood Borough when referring households for certification
to affordable units.
(c)
Affordability controls:
[1]
Furnishing to attorneys or closing agents forms of deed restrictions
and mortgages for recording at the time of conveyance of title of
each restricted unit;
[2]
Creating and maintaining a file on each restricted unit for
its control period, including the recorded deed with restrictions,
recorded mortgage and note, as appropriate;
[3]
Ensuring that the removal of the deed restrictions and cancellation
of the mortgage note are effectuated and properly filed with the Union
County Register of Deeds or Union County Clerk's office after
the termination of the affordability controls for each restricted
unit;
[4]
Communicating with lenders regarding foreclosures; and
[5]
Ensuring the issuance of continuing certificates of occupancy
or certifications pursuant to N.J.A.C. 5:80-26.10.
(d)
Resales and rerentals:
[1]
Instituting and maintaining an effective means of communicating
information between owners and the Administrative Agent regarding
the availability of restricted units for resale or rerental; and
[2]
Instituting and maintaining an effective means of communicating
information to low- and moderate-income households regarding the availability
of restricted units for resale or rerental.
(e)
Processing requests from unit owners:
[1]
Reviewing and approving requests for determination from owners
of restricted units who wish to take out home equity loans or refinance
during the term of their ownership that the amount of indebtedness
to be incurred will not violate the terms of this chapter;
[2]
Reviewing and approving requests to increase sales prices from
owners of restricted units who wish to make capital improvements to
the units that would affect the selling price, such authorizations
to be limited to those improvements resulting in additional bedrooms
or bathrooms and the depreciated cost of central air-conditioning
systems;
[3]
Notifying the municipality of an owner's intent to sell
a restricted unit; and
[4]
Making determinations on requests by owners of restricted units
for hardship waivers.
(f)
Enforcement:
[1]
Securing annually from the municipality a list 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;
[2]
Securing from all developers and sponsors of restricted units,
at the earliest point of contact in the processing of the project
or development, written acknowledgement of the requirement that no
restricted unit can be offered, or in any other way committed, to
any person, other than a household duly certified to the unit by the
Administrative Agent;
[3]
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 or other charges can be made;
[4]
Sending annual mailings to all owners of affordable dwelling
units, reminding them of the notices and requirements outlined in
N.J.A.C. 5:80-26.18(d)4;
[5]
Establishing a program for diverting unlawful rent payments
to the municipality's Affordable Housing Trust Fund; and
[6]
Creating and publishing a written operating manual for each
affordable housing program administered by the Administrative Agent,
to be approved by the Borough Council and COAH, its successor entity,
or the Court, setting forth procedures for administering the affordability
controls.
(g)
Additional responsibilities:
[1]
The Administrative Agent shall have the authority to take all
actions necessary and appropriate to carry out its responsibilities
hereunder;
[2]
The Administrative Agent shall prepare monitoring reports for
submission to the Municipal Housing Liaison in time to meet any monitoring
requirements and deadlines imposed by COAH, its successor entity,
or the Court; and
[3]
The Administrative Agent shall attend continuing education sessions
on affordability controls, compliance monitoring, and affirmative
marketing at least annually and more often as needed.
C.
Affirmative marketing requirements.
(1)
Fanwood Borough shall adopt by resolution an Affirmative Marketing
Plan, subject to approval of COAH, its successor entity, or the Court
that is compliant with N.J.A.C. 5:80-26.15, as may be amended and
supplemented.
(2)
The Affirmative Marketing Plan is a regional marketing strategy designed
to attract buyers and/or renters of all majority and minority groups,
regardless of race, creed, color, national origin, ancestry, marital
or familial status, gender, affectional or sexual orientation, disability,
age or number of children to housing units that are being marketed
by a developer, sponsor or owner of affordable housing. The Affirmative
Marketing Plan is intended to target those potentially eligible persons
who are least likely to apply for affordable units in that region.
It is a continuing program that directs marketing activities toward
Housing Region 2 and is required to be followed throughout the period
of restriction.
(3)
The Affirmative Marketing Plan shall provide a regional preference
for all households that live and/or work in Housing Region 2, comprised
of Essex, Morris, Union, and Warren counties.
(4)
The municipality has the ultimate responsibility for adopting the
Affirmative Marketing Plan and for the proper administration of the
Affirmative Marketing Program, including initial sales and rentals
and resales and rerentals. The Administrative Agent designated by
the Borough shall implement the Affirmative Marketing Plan to assure
the affirmative marketing of all affordable units.
(5)
In implementing the Affirmative Marketing Plan, the Administrative
Agent shall provide a list of counseling services to low- and moderate-income
applicants on subjects such as budgeting, credit issues, mortgage
qualification, rental lease requirements, and landlord/tenant law.
(6)
The Affirmative Marketing Plan shall describe the media to be used
in advertising and publicizing the availability of housing. In implementing
the Affirmative Marketing Plan, the Administrative Agent shall consider
the use of language translations where appropriate.
(7)
The affirmative marketing process for available affordable units
shall begin at least four months (i.e., 120 days) prior to the expected
date of occupancy.
(8)
Applications for affordable housing shall be available in several
locations, including, at a minimum, the county administration building
and the county library for each county within the housing region;
the Fanwood Borough Municipal Building and the Fanwood Public Library;
and the developer's rental office. Applications shall be mailed
to prospective applicants upon request.
(9)
The costs of advertising and affirmative marketing of the affordable
units shall be the responsibility of the developer, sponsor or owner.
D.
Occupancy standards.
(1)
In referring certified households to specific restricted units, the
Administrative Agent shall, to the extent feasible and without causing
an undue delay in the occupancy of a unit, strive to:
E.
Control periods for restricted ownership units and enforcement mechanisms.
(1)
Control periods for restricted ownership units shall be in accordance
with N.J.A.C. 5:80-26.5, as may be amended and supplemented, and each
restricted ownership unit shall remain subject to the requirements
of this chapter for a period of at least 30 years, until Fanwood Borough
takes action to release the unit from such requirements; prior to
such action, a restricted ownership unit must remain subject to the
requirements of N.J.A.C. 5:80-26.1, as may be amended and supplemented.
(2)
The affordability control period for a restricted ownership unit
shall commence on the date the initial certified household takes title
to the unit.
(3)
Prior to the issuance of the initial certificate of occupancy for
a restricted ownership unit and upon each successive sale during the
period of restricted ownership, the Administrative Agent shall determine
the restricted price for the unit and shall also determine the nonrestricted,
fair market value of the unit based on either an appraisal or the
unit's equalized assessed value without the restrictions in place.
(4)
At the time of the initial sale of the unit, the initial purchaser
shall execute and deliver to the Administrative Agent a recapture
note obligating the purchaser (as well as the purchaser's heirs,
successors and assigns) to repay, upon the first nonexempt sale after
the unit's release from the restrictions set forth in this chapter,
an amount equal to the difference between the unit's nonrestricted
fair market value and its restricted price, and the recapture note
shall be secured by a recapture lien evidenced by a duly recorded
mortgage on the unit.
(5)
The affordability controls set forth in this chapter shall remain
in effect despite the entry and enforcement of any judgment of foreclosure
with respect to restricted ownership units.
(6)
A restricted ownership unit shall be required to obtain a continuing
certificate of occupancy or a certified statement from the Construction
Official stating that the unit meets all Code standards upon the first
transfer of title following the removal of the restrictions provided
under N.J.A.C. 5:80-26.5(a), as may be amended and supplemented.
F.
Price restrictions for restricted ownership units, homeowners'
association fees and resale prices.
(1)
Price restrictions for restricted ownership units shall be in accordance
with N.J.A.C. 5:80-26.1, as may be amended and supplemented, including:
(a)
The initial purchase price for a restricted ownership unit shall
be approved by the Administrative Agent;
(b)
The Administrative Agent shall approve all resale prices, in
writing, and in advance of the resale, to assure compliance with the
foregoing standards;
(c)
The master deeds of inclusionary developments shall provide
no distinction between the condominium or homeowners' association
fees and special assessments paid by low- and moderate-income purchasers
and those paid by market purchasers; and
(d)
The owners of restricted ownership units may apply to the Administrative
Agent to increase the maximum sales price for the unit on the basis
of anticipated capital improvements. Eligible capital improvements
shall be those that render the unit suitable for a larger household
or the addition of a bathroom.
G.
Buyer income eligibility.
(1)
Buyer income eligibility for restricted ownership units shall be
in accordance with N.J.A.C. 5:80-26.1, as may be amended and supplemented,
such that low-income ownership units shall be reserved for households
with a gross household income less than or equal to 50% of median
income and moderate-income ownership units shall be reserved for households
with a gross household income less than 80% of median income.
(2)
Notwithstanding the foregoing, however, the Administrative Agent
may, upon approval by the Borough Council, and subject to the approval
of COAH, its successor entity or the court, permit moderate-income
purchasers to buy low-income units in housing markets if the Administrative
Agent determines that there are an insufficient number of eligible
low-income purchasers to permit prompt occupancy of the units. All
such low-income units to be sold to moderate-income households shall
retain the required pricing and pricing restrictions for low-income
units.
(3)
A certified household that purchases a restricted ownership unit
must occupy it as the certified household's principal residence
and shall not lease the unit; provided, however, that the Administrative
Agent may permit the owner of a restricted ownership unit, upon application
and a showing of hardship, to lease the restricted unit to another
certified household for a period not to exceed one year.
(4)
The Administrative Agent shall certify a household as eligible for
a restricted ownership unit when the household is a low-income household
or a moderate-income household, as applicable to the unit, and the
estimated monthly housing cost for the particular unit (including
principal, interest, taxes, homeowner and private mortgage insurance
and condominium or homeowners' association fees, as applicable)
does not exceed 33% of the household's eligible monthly income.
H.
Limitations on indebtedness secured by ownership unit; subordination.
(1)
Prior to incurring any indebtedness to be secured by a restricted
ownership unit, the owner shall apply to the Administrative Agent
for a determination, in writing, that the proposed indebtedness complies
with the provisions of this section, and the Administrative Agent
shall issue such determination prior to the owner incurring such indebtedness.
(2)
With the exception of first purchase money mortgages, neither an
owner nor a lender shall at any time cause or permit the total indebtedness
secured by a restricted ownership unit to exceed 95% of the maximum
allowable resale price of the unit, as such price is determined by
the Administrative Agent in accordance with N.J.A.C. 5:80-26.6(b).
I.
Capital improvements to ownership units.
(1)
The owners of restricted ownership units may apply to the Administrative
Agent to increase the maximum sales price for the unit on the basis
of capital improvements made since the purchase of the unit. Eligible
capital improvements shall be those that render the unit suitable
for a larger household or that adds an additional bathroom. In no
event shall the maximum sales price of an improved housing unit exceed
the limits of affordability for the larger household.
(2)
Upon the resale of a restricted ownership unit, all items of property
that are permanently affixed to the unit or were included when the
unit was initially restricted (e.g., refrigerator, range, washer,
dryer, dishwasher, wall-to-wall carpeting) shall be included in the
maximum allowable resale price. Other items may be sold to the purchaser
at a reasonable price that has been approved by the Administrative
Agent at the time of the signing of the agreement to purchase. The
purchase of central air conditioning installed subsequent to the initial
sale of the unit and not included in the base price may be made a
condition of the unit resale, provided the price, which shall be subject
to ten-year, straight-line depreciation, has been approved by the
Administrative Agent. Unless otherwise approved by the Administrative
Agent, the purchase of any property other than central air conditioning
shall not be made a condition of the unit resale. The owner and the
purchaser must personally certify at the time of closing that no unapproved
transfer of funds for the purpose of selling and receiving property
has taken place at the time of or as a condition of resale.
J.
Control periods for restricted rental units.
(1)
Control periods for restricted rental units shall be in accordance
with N.J.A.C. 5:80-26.11, as may be amended and supplemented, and
each restricted rental unit shall remain subject to the requirements
of this chapter for a period of at least 30 years, until Fanwood Borough
takes action to release the unit from such requirements. Prior to
such action, a restricted rental unit must remain subject to the requirements
of N.J.A.C. 5:80-26.1, as may be amended and supplemented.
(2)
Deeds of all real property that include restricted rental units shall
contain deed restriction language. The deed restriction shall have
priority over all mortgages on the property, and the deed restriction
shall be filed by the developer or seller with the records office
of Union County. A copy of the filed document shall be provided to
the Administrative Agent within 30 days of the receipt of a certificate
of occupancy.
(3)
A restricted rental unit shall remain subject to the affordability
controls of this chapter despite the occurrence of any of the following
events:
K.
Rent restrictions for rental units; leases.
(1)
A written lease shall be required for all restricted rental units
and tenants shall be responsible for security deposits and the full
amount of the rent as stated on the lease. A copy of the current lease
for each restricted rental unit shall be provided to the Administrative
Agent.
(2)
No additional fees or charges shall be added to the approved rent
(except, in the case of units in an assisted living residence, to
cover the customary charges for food and services) without the express
written approval of the Administrative Agent.
(3)
Application fees (including the charge for any credit check) shall
not exceed 5% of the monthly rent of the applicable restricted unit
and shall be payable to the Administrative Agent to be applied to
the costs of administering the controls applicable to the unit as
set forth in this chapter.
(4)
No rent control ordinance or other pricing restriction shall be applicable
to either the market units or the affordable units in any development
in which at least 15% of the total number of dwelling units are restricted
rental units in compliance with this chapter.
L.
Tenant income eligibility.
(1)
Tenant income eligibility shall be in accordance with N.J.A.C. 5:80-26.13,
as may be amended and supplemented, and shall be determined, as follows:
(a)
Very low-income rental units shall be reserved for households
with a gross household income less than or equal to 30% of median
income;
(b)
Low-income rental units shall be reserved for households with
a gross household income less than or equal to 50% of median income;
and
(c)
Moderate-income rental units shall be reserved for households
with a gross household income less than 80% of median income.
(2)
The Administrative Agent shall certify a household as eligible for
a restricted rental unit when the household is a very low-income household,
a low-income household or a moderate-income household, as applicable
to the unit, and the rent proposed for the unit does not exceed 35%
(40% for age-restricted units) of the household's eligible monthly
income as determined pursuant to N.J.A.C. 5:80-26.16, as may be amended
and supplemented; provided, however, that this limit may be exceeded
if one or more of the following circumstances exists:
(a)
The household currently pays more than 35% (40% for households
eligible for age-restricted units) of its gross household income for
rent, and the proposed rent will reduce its housing costs;
(b)
The household has consistently paid more than 35% (40% for households
eligible for age-restricted units) of eligible monthly income for
rent in the past and has proven its ability to pay;
(c)
The household is currently in substandard or overcrowded living
conditions;
(d)
The household documents the existence of assets with which the
household proposes to supplement the rent payments; or
(e)
The household documents reliable anticipated third-party assistance
from an outside source such as a family member in a form acceptable
to the Administrative Agent and the owner of the unit.
(3)
The applicant shall file documentation sufficient to establish the
existence of the circumstances enumerated in this subsection with
the Administrative Agent, who shall counsel the household on budgeting.
M.
Maximum rents and sales prices:
(1)
In establishing rents and sales prices of affordable housing units,
the Administrative Agent shall follow the procedures set forth in
UHAC, utilizing the regional income limits established by COAH or
a successor entity.
(2)
The maximum rent for restricted rental units within each affordable
development shall be affordable to households earning no more than
60% of median income, and the average rent for restricted rental units
shall be affordable to households earning no more than 52% of median
income.
(3)
The developers and/or municipal sponsors of restricted rental units
shall establish at least one rent for each bedroom type for both low-income
and moderate-income units, provided that at least 10% of all low-
and moderate-income rental units shall be affordable to very low-income
households, earning 30% or less of the regional median household income.
(4)
The maximum sales price of restricted ownership units within each
affordable development shall be affordable to households earning no
more than 70% of median income, and each affordable development must
achieve an affordability average of 55% for restricted ownership units;
in achieving this affordability average, moderate-income ownership
units must be available for at least three different sales prices
for each bedroom type, and low-income ownership units must be available
for at least two different sales prices for each bedroom type.
(5)
In determining the initial sales prices and rent levels for compliance
with the affordability average requirements for restricted units other
than assisted living facilities and age-restricted developments, the
following standards shall be used:
(a)
A studio shall be affordable to a one-person household;
(b)
A one-bedroom unit shall be affordable to a one-and-one-half-person
household;
(c)
A two-bedroom unit shall be affordable to a three-person household;
(d)
A three-bedroom unit shall be affordable to a four-and-one-half-person
household; and
(e)
A four-bedroom unit shall be affordable to a six-person household.
(6)
In determining the initial sales prices and rents for compliance
with the affordability average requirements for restricted units in
assisted living facilities and age-restricted developments, the following
standards shall be used:
(7)
The initial purchase price for all restricted ownership units shall
be calculated so that the monthly carrying cost of the unit, including
principal and interest (based on a mortgage loan equal to 95% of the
purchase price and the Federal Reserve H.15 rate of interest), taxes,
homeowner and private mortgage insurance and condominium or homeowners'
association fees do not exceed 28% of the eligible monthly income
of the appropriate size household as determined under N.J.A.C. 5:80-26.4,
as may be amended and supplemented; provided, however, that the price
shall be subject to the affordability average requirement of N.J.A.C.
5:80-26.3, as may be amended and supplemented.
(8)
The initial rent for a restricted rental unit shall be calculated
so as not to exceed 30% of the eligible monthly income of the appropriate
size household, including an allowance for tenant-paid utilities,
as determined under N.J.A.C. 5:80-26.4, as may be amended and supplemented;
provided, however, that the rent shall be subject to the affordability
average requirement of N.J.A.C. 5:80-26.3, as may be amended and supplemented.
(9)
The price of owner-occupied low- and moderate-income units may increase
annually based on the percentage increase in the regional median income
limit for each housing region. In no event shall the maximum resale
price established by the Administrative Agent be lower than the last
recorded purchase price.
(10)
The rent of low- and moderate-income units may be increased
annually based on the permitted 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 housing tax credit regulations shall be indexed pursuant
to the regulations governing low-income housing tax credits.
Developments which include affordable housing units shall be
subject to the following provisions:
A.
Low-income housing. Low-income housing shall be 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 subject to affordability controls.
B.
Moderate-income housing. Moderate-income housing shall be 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 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 subject to affordability
controls.
C.
In accordance with N.J.S.A. 52:27D-329.1 (P.L. 2008, C. 46) at least
13% of the affordable units provided within the Borough shall be reserved
for very low-income households, i.e., households earning 30% or less
of the median income, and of that amount at least 50% shall be reserved
for very low-income families (i.e., non-age-restricted and not reserved
for special needs populations). For developments with eight or more
affordable housing units on site, at least 13% of all low- and moderate-income
units shall be affordable to households earning no more than 30% of
median income. A minimum of 50% of these units shall be reserved for
very low-income families.
D.
Age restriction. The sales and rentals of not more than 25% of the
affordable housing units constructed within the Borough may be age-restricted
to senior citizens as defined by and in accordance with the Federal
Fair Housing Act and as regulated by N.J.A.C. 5:92-14, provided that
no more than 25% of the total affordable housing units constructed
within the Borough shall be age restricted. A request to age-restrict
housing units may only be granted after the Planning Board or Board
of Adjustment has received the consent of the Borough Council. In
designing its project, the applicant may propose constructing the
senior-citizen-restricted affordable units in the same building or
buildings in order to maximize the potential of preserving a more
tranquil lifestyle for the senior citizen resident; and to the foregoing
extent, the requirement of integration of the affordable units with
conventional units is modified.
E.
Low/moderate split and bedroom distribution of affordable housing
units:
(1)
The fair share obligation shall be divided equally between low- and
moderate-income units, except that where there is an odd number of
affordable housing units, the extra unit shall be a low-income unit.
(2)
In each affordable development, at least 50% of the restricted units
within each bedroom distribution shall be low-income units.
(3)
Affordable developments that are not age-restricted shall be structured
in conjunction with realistic market demands such that:
(a)
The combined number of efficiency and one-bedroom units is no
greater than 20% of the total low- and moderate-income units;
(b)
At least 30% of all low- and moderate-income units are two-bedroom
units;
(c)
At least 20% of all low- and moderate-income units are three-bedroom
units; and
(d)
The remainder, if any, may be allocated at the discretion of
the developer.
(4)
Affordable developments that are age-restricted shall be structured
such that the number of bedrooms shall equal the number of age-restricted
low- and moderate-income units within the inclusionary development.
The standard may be met by having all one-bedroom units or by having
a two-bedroom unit for each efficiency unit.
F.
Location and design. Low- and moderate-income housing shall be designed
in accordance with the following provisions:
(1)
The low- and moderate-income housing units shall be sited on the
tract in locations at least as accessible to common open space and
community facilities as market-priced dwelling units. Rental units
may be concentrated for ownership and management unit reasons.
(2)
The exterior design of the low- and moderate-income housing units
shall be harmonious in scale, texture, and materials with the market-priced
units on the tract.
(3)
Deed restrictions. Developers of housing units for low- and moderate-income
households shall enter into a written agreement, binding on all successors-in-interest,
in accordance with current COAH regulations or Court requirements
for resale/rental control, at the time of sale, resale, rental or
rerental regardless of the availability of federal, state, county
or Borough subsidy programs.
(4)
In inclusionary developments, to the extent possible, low- and moderate-income
units shall be integrated with the market units.
G.
Utilities.
(1)
Affordable units shall utilize the same type of heating source as
market units within an inclusionary development.
(2)
Tenant-paid utilities included in the utility allowance shall be
set forth in the lease and shall be consistent with the utility allowance
approved by the DCA for its Section 8 program.
H.
Accessibility requirements.
(1)
The first floor of all restricted townhouse dwelling units and all
restricted units in all other multistory buildings shall be subject
to the technical design standards of the Barrier Free Subcode, N.J.A.C.
5:23-7 and the following:
(a)
All restricted townhouse dwelling units and all restricted units
in other multistory buildings in which a restricted dwelling unit
is attached to at least one other dwelling unit shall have the following
features:
[1]
An adaptable toilet and bathing facility on the first floor;
and
[2]
An adaptable kitchen on the first floor; and
[3]
An interior accessible route of travel on the first floor; and
[4]
An adaptable room that can be used as a bedroom, with a door
or the casing for the installation of a door, on the first floor;
and
[5]
If not all of the foregoing requirements in this paragraph can
be satisfied, then an interior accessible route of travel must be
provided between stories within an individual unit, but if all of
the foregoing requirements in this paragraph have been satisfied,
then an interior accessible route of travel shall not be required
between stories within an individual unit; and
[6]
An accessible entranceway as set forth at P.L. 2005, c. 350
(N.J.S.A. 52:27D-311a et seq.) and the Barrier Free Subcode, N.J.A.C.
5:23-7, or evidence that Fanwood Borough has collected funds from
the developer sufficient to make 10% of the adaptable entrances in
the development accessible:
[a]
Where a unit has been constructed with an adaptable
entrance, upon the request of a disabled person who is purchasing
or will reside in the dwelling unit, an accessible entrance shall
be installed.
[b]
To this end, the builder of restricted units shall
deposit funds within the Fanwood Borough Affordable Housing Trust
Fund sufficient to install accessible entrances in 10% of the affordable
units that have been constructed with adaptable entrances.
[c]
The funds deposited under the terms of this subsection
shall be used by Fanwood Borough for the sole purpose of making the
adaptable entrance of an affordable unit accessible when requested
to do so by a person with a disability who occupies or intends to
occupy the unit and requests an accessible entrance.
[d]
The developer of the restricted units shall submit
a design plan and cost estimate to the Construction Official of Fanwood
Borough for the conversion of adaptable to accessible entrances.
[e]
Once the Construction Official has determined that
the design plan to convert the unit entrances from adaptable to accessible
meets the requirements of the Barrier Free Subcode, N.J.A.C. 5:23-7,
and that the cost estimate of such conversion is reasonable, payment
shall be made to the Fanwood Borough Affordable Housing Trust Fund.
(b)
Full compliance with the foregoing provisions shall not be required
where an entity can demonstrate that it is "site impracticable" to
meet the requirements. Determinations of site impracticability shall
be in compliance with the Barrier Free Subcode, N.J.A.C. 5:23-7.
A.
The administration of an alternative living arrangement shall be
in compliance with N.J.A.C. 5:93-5.8 and the UHAC, with the following
exceptions:
(1)
Affirmative marketing (N.J.A.C. 5:80-26.15), provided, however, that
the units or bedrooms may be affirmatively marketed by the provider
in accordance with an alternative plan approved by COAH, its successor
entity, or the Court;
(2)
Affordability average and bedroom distribution (N.J.A.C. 5:80-26.3).
(3)
With the exception of units established with capital funding through
a twenty-year operating contract with the Department of Human Services,
Division of Developmental Disabilities, alternative living arrangements
shall have at least thirty-year controls on affordability in accordance
with the UHAC, unless an alternative commitment is approved by COAH,
its successor entity, or the Court.
B.
The service provider for the alternative living arrangement shall
act as the Administrative Agent for the purposes of administering
the affirmative marketing and affordability requirements for the alternative
living arrangement.
A.
Upon the occurrence of a breach of any of the regulations governing
the affordable unit by an owner, developer or tenant, the municipality
shall have all remedies provided at law or equity, including, but
not limited to, foreclosure, tenant eviction, a requirement for household
recertification, acceleration of all sums due under a mortgage, recuperation
of any funds from a sale in violation of the regulations, injunctive
relief to prevent further violation of the regulations, entry on the
premises, and specific performance.
B.
After providing written notice of a violation to an owner, developer
or tenant of a low- or moderate-income unit and advising the owner,
developer or tenant of the penalties for such violations, the municipality
may take the following action(s) against the owner, developer or tenant
for any violation that remains uncured for a period of 60 days after
service of the written notice:
(1)
The municipality may file a court action pursuant to N.J.S.A. 2A:58-11
alleging a violation, or violations of the regulations governing the
affordable housing unit. If the owner, developer or tenant is adjudged
by the Court to have violated any provision of the regulations governing
affordable housing units, the owner, developer or tenant shall be
subject to one or more of the following penalties, at the discretion
of the Court:
(a)
A fine of not more than $500 per day or imprisonment for a period
not to exceed 90 days, or both, provided that each and every day that
the violation continues or exists shall be considered a separate and
specific violation of these provisions and not a continuation of the
initial offense;
(b)
In the case of an owner who has rented a low- or moderate-income
unit in violation of the regulations governing affordable housing
units, payment into the Fanwood Borough Affordable Housing Trust Fund
of the gross amount of rent illegally collected;
(c)
In the case of an owner who has rented a low- or moderate-income
unit in violation of the regulations governing affordable housing
units, payment of an innocent tenant's reasonable relocation
costs, as determined by the Court.
(2)
The municipality may file a court action in the Superior Court seeking
a judgment that would result in the termination of the owner's
equity or other interest in the unit, in the nature of a mortgage
foreclosure. Any such judgment shall be enforceable as if the same
were a judgment of default of the first purchase money mortgage and
shall constitute a lien against the low- or moderate-income unit.
(a)
The judgment shall be enforceable, at the option of the municipality,
by means of an execution sale by the Sheriff, at which time the low-
and moderate-income unit of the violating owner shall be sold at a
sale price which is not less than the amount necessary to fully satisfy
and pay off any first purchase money mortgage and prior liens and
the costs of the enforcement proceedings incurred by the municipality,
including attorneys' fees. The violating owner shall have his
right to possession terminated as well as his title conveyed pursuant
to the Sheriff's sale.
(b)
The proceeds of the Sheriff's sale shall first be applied
to satisfy the first purchase money mortgage lien and any prior liens
upon the low- and moderate-income unit. The excess, if any, shall
be applied to reimburse the municipality for any and all costs and
expenses incurred in connection with either the court action resulting
in the judgment of violation or the Sheriff's sale. In the event
that the proceeds from the Sheriff's sale are insufficient to
reimburse the municipality in full as aforesaid, the violating owner
shall be personally responsible for the full extent of such deficiency,
in addition to any and all costs incurred by the municipality in connection
with collecting such deficiency. In the event that a surplus remains
after satisfying all of the above, such surplus, if any, shall be
placed in escrow by the municipality for the owner and shall be held
in such escrow for a maximum period of two years or until such earlier
time as the owner shall make a claim with the municipality for such.
Failure of the owner to claim such balance within the two-year period
shall automatically result in a forfeiture of such balance to the
municipality. Any interest accrued or earned on such balance while
being held in escrow shall belong to and shall be paid to the municipality,
whether such balance shall be paid to the owner or forfeited to the
municipality.
(c)
Foreclosure by the municipality due to violation of the regulations
governing affordable housing units shall not extinguish the restrictions
of the regulations governing affordable housing units as the same
apply to the low- and moderate-income unit. Title shall be conveyed
to the purchaser at the Sheriff's sale, subject to the restrictions
and provisions of the regulations governing the affordable housing
unit. The owner determined to be in violation of the provisions of
this plan and from whom title and possession were taken by means of
the Sheriff's sale shall not be entitled to any right of redemption.
(d)
If there are no bidders at the Sheriff's sale, or if insufficient
amounts are bid to satisfy the first purchase money mortgage and any
prior liens, the municipality may acquire title to the low- and moderate-income
unit by satisfying the first purchase money mortgage and any prior
liens and crediting the violating owner with an amount equal to the
difference between the first purchase money mortgage and any prior
liens and costs of the enforcement proceedings, including legal fees
and the maximum resale price for which the low- and moderate-income
unit could have been sold under the terms of the regulations governing
affordable housing units. This excess shall be treated in the same
manner as the excess which would have been realized from an actual
sale as previously described.
(e)
Failure of the low- and moderate-income unit to be either sold
at the Sheriff's sale or acquired by the municipality shall obligate
the owner to accept an offer to purchase from any qualified purchaser
which may be referred to the owner by the municipality, with such
offer to purchase being equal to the maximum resale price of the low-
and moderate-income unit as permitted by the regulations governing
affordable housing units.
(f)
The owner shall remain fully obligated, responsible and liable
for complying with the terms and restrictions of governing affordable
housing units until such time as title is conveyed from the owner.
A.
Appeals from all decisions of an Administrative Agent appointed pursuant
to this chapter shall be filed, in writing, with the Court or with
COAH or its successor entity, as may be applicable under law.
