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Township of Marlboro, NJ
Monmouth County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Township Council of the Township of Marlboro 12-12-2019 by Ord. No. 2019-13.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Affordable Housing Agency — See Ch. 4, § 4-100.
Uniform construction codes — See Ch. 125.
Homebuyers' protection — See Ch. 200.
Land use and development — See Ch. 220.
Property maintenance — See Ch. 278.
[1]
Editor's Note: This ordinance also repealed former Ch. 70, Affordable Housing, adopted 9-10-1987 by Ord. No. 36-87 (Ch. 5 of the 1981 Code, as amended.
The purpose of this chapter is to include provisions addressing the Township of Marlboro's constitutional obligation to provide for its fair share of low- and moderate-income housing, as directed by the Supreme Court and consistent with N.J.A.C. 5:93-1 et seq., as amended and supplemented, N.J.A.C. 5:80-26.1 et seq., as amended and supplemented, and the New Jersey Fair Housing Act of 1985. This chapter is intended to assure compliance with the regulations of the Council on Affordable Housing ("COAH") set forth at N.J.A.C. 5:93-1 et seq., and the Uniform Housing Affordability Controls, N.J.A.C. 5:80-26.1 et seq., including provisions for unit affordability controls as well as eligibility for low- and moderate-income households. This chapter shall apply except where inconsistent with applicable law.
It is the intent of this chapter to regulate the development and management of low- and moderate-income units constructed in compliance with the Housing Plan Element and Fair Share Plan of the Township of Marlboro.
A. 
Creation. There is hereby created an Affordable Housing Agency (the "Agency") of the Township of Marlboro.
B. 
Composition.
(1) 
The Agency shall consist of five members, and two alternate members, all of whom shall be appointed by the Mayor. No more than two of the membership of the Affordable Housing Agency shall be Township officials. All remaining members must be Township residents. However, one appointment shall be reserved for a tenant or owner/occupant of a very-low-, low- or moderate-income unit who is not a Township official.
(2) 
Alternate members shall have all of the powers of regular members when sitting in place of a regular member. Until such time as a very-low-, low- or moderate-income owner/occupant or tenant appointment can be made, an alternate member shall function as a regular member.
(3) 
The Mayor shall designate one regular member to serve as Chairperson and one member to serve as Vice Chairperson.
(4) 
Attendance by three regular members or alternate members shall constitute a quorum. Passage of any motion requires an affirmative vote by a majority of the members present.
(5) 
The initial term of office of the Affordable Housing Agency members shall be one, two or three years, to be designated by the Mayor in making the appointment. The terms of office shall thereafter be three years. The appointments shall be made in such a manner so that the terms of approximately 1/3 of the members shall expire each year.
C. 
Vacancies; removal for cause. The Mayor may remove any member of the Affordable Housing Agency for cause. Written charges served upon the member shall be followed by a hearing before the Marlboro Township Council thereon, at which time the member shall be entitled to be heard either in person or by counsel. A vacancy in the Affordable Housing Agency occurring other than by expiration of the term shall be filled for the unexpired term in the same manner as an original appointment.
D. 
Powers and duties. The powers and duties of the Affordable Housing Agency shall be as follows:
(1) 
The owner of each potentially covered residential building in Marlboro Township shall be contacted by the Affordable Housing Agency and informed of the plan to compensate eligible households for rehabilitation of the buildings in which they live. All residential buildings deemed deficient shall be eligible for the rehabilitation subsidies, provided that additional documentation is given to the Affordable Housing Agency in order to certify eligibility in accordance with this Rehabilitation Article of this chapter.
(2) 
The Agency shall take any such action as may be necessary and authorized under this chapter to implement the policies and goals of this chapter, along with any applicable provision(s) and/or requirements of the New Jersey Fair Housing Act (N.J.S.A. 52:27D-301 et seq.), any procedural or substantive rules promulgated by the New Jersey Council on Affordable Housing (N.J.A.C. 5:96 and 5:97 et seq.), or any provisions of the Uniform Housing Affordability Controls regulations (N.J.A.C. 5:80-26.1 et seq.), to ensure that housing units designated as very-low-, low- or moderate-income units, once constructed, shall remain affordable to and be occupied by very-low-, low- or moderate-income households.
(3) 
To report semiannually to the Mayor and Township Council on the status of very-low-, low- and moderate-income units, including but not limited to such things as the Agency's enforcement actions in connection with any matters or units with the Agency's jurisdiction.
(4) 
To take enforcement action, as authorized by § 70-25 of this chapter, against any person or entity for violation of this chapter, the New Jersey Fair Housing Act (N.J.S.A. 52:27D-301 et seq.); the Uniform Affordability Controls Act (N.J.A.C. 5:80-26.1 et seq.); and/or the substantive and procedural rules promulgated from time to time by the Council on Affordable Housing (N.J.A.C. 5:96 and 5:97 et seq.).
(5) 
To ensure compliance and accountability of the administrative agent pursuant to N.J.A.C. 5:80-26.18(a).
(6) 
To periodically review this chapter to ensure that it is not in conflict with the UHAC.
(7) 
To provide all reasonable and necessary assistance in support of the administrative agent's efforts to ensure effective compliance with the controls set forth in the UHAC.
(8) 
To ensure that by no later than June 30 of any given year that an annual mailing is made to all affordable units within the Township which shall request that the owner verify all the information required in the annual mailing set forth in the UHAC [N.J.A.C. 5:80-26.18(d)(4)] as well as Appendices J and K therein.
(9) 
To implement and adjudicate the provisions of Chapter 235, entitled "Mobile Homes" of the Code of the Township of Marlboro.
(10) 
To implement and enforce the provisions of § 220-68 entitled "MHD-II Mobile Home Park District" of the Code of the Township of Marlboro.
E. 
Appropriation and accountability. The Mayor may appoint special counsel, accountants, financial investigators and professional planners required so that the Affordable Housing Agency can carry out its duties and responsibilities.
A. 
Trust fund activity. On the first anniversary of the entry of the order granting Marlboro a final judgment of compliance and repose in In re Township of Marlboro Compliance with Mount Laurel Third Round Affordable Housing Obligation, and every anniversary thereafter through the end of the repose period, the Township shall provide annual reporting of its affordable housing trust fund activity to the New Jersey Department of Community Affairs, Council on Affordable Housing or Division of Local Government Services, or other entity designated by the State of New Jersey, with a copy provided to Fair Share Housing Center and posted on the municipal website, using forms developed for this purpose by the New Jersey Department of Community Affairs, Council on Affordable Housing or Division of Local Government Services. The reporting shall include an accounting of all affordable housing trust fund activity, including the source and amount of funds collected and the amount and purpose for which any funds have been expended.
B. 
Affordable housing activity. On the first anniversary of the entry of the order granting Marlboro a final judgment of compliance and repose in In re Township of Marlboro Compliance with Mount Laurel Third Round Affordable Housing Obligation, and every anniversary thereafter through the end of the repose period, the Township shall provide annual reporting of the status of all affordable housing activity within the Township through posting on the municipal website, with copies provided to Fair Share Housing Center, using forms previously developed for this purpose by the Council on Affordable Housing or any other forms endorsed by the court-appointed special master and Fair Share Housing Center. For the midpoint realistic opportunity review due on July 1, 2020, as required pursuant to N.J.S.A. 52:27D-313, the Township shall post on its municipal website, with copies provided to Fair Share Housing Center, a status report as to its implementation of its affordable housing plan and an analysis of whether any unbuilt sites or unfulfilled mechanisms continue to present a realistic opportunity. Such posting shall invite any interested party to submit comments to the Township, with copies provided to Fair Share Housing Center, regarding whether any sites no longer present a realistic opportunity and should be replaced. Any interested party may by motion request a hearing before the court regarding these issues.
C. 
Very-low-income housing. For the review of very-low-income housing requirements required by N.J.S.A. 52:27D-329.1, within 30 days of the third anniversary of the entry of the order granting Marlboro a final judgment of compliance and repose in In re Township of Marlboro Compliance with Mount Laurel Third Round Affordable Housing Obligation, and every third year thereafter, the Township will post on its municipal website, with copies provided to Fair Share Housing Center, a status report as to its satisfaction of its very-low-income requirements, including the family very-low-income requirements referenced herein. Such posting shall invite any interested party to submit comments to the Township, with copies provided to Fair Share Housing Center, on the issue of whether the Township has complied with its very-low-income housing obligation.
The following terms when used in this chapter shall have the meanings given in this section:
ACCESSORY APARTMENT
A self-contained residential dwelling unit with a kitchen, sanitary facilities, sleeping quarters and a private entrance, which is created within an existing home, or through the conversion of an existing structure on the same site, or by an addition to an existing home or accessory building, or by the construction of a new accessory structure on the same site.
ACT
The Fair Housing Act of 1985, P.L. 1985, c. 222 (N.J.S.A. 52:27D-301 et seq.)
ADAPTABLE
Constructed in compliance with the technical design standards of the Barrier Free Subcode, N.J.A.C. 5:23-7.
ADMINISTRATIVE AGENT
The entity designated by the Township to administer affordable units in accordance with this chapter, the regulations of the Council on Affordable Housing set forth at N.J.A.C. 5:93 et seq., and the Uniform Housing Affordability Controls set forth at N.J.A.C. 5:80-26 et seq.
AFFIRMATIVE MARKETING
A regional marketing strategy designed to attract buyers and/or renters of affordable units pursuant to N.J.A.C. 5:80-26.15.
AFFORDABILITY AVERAGE
The average percentage of median income at which new restricted units in an affordable housing development are affordable to low- and moderate-income households.
AFFORDABLE
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.
AFFORDABLE HOUSING DEVELOPMENT
A development included in or approved pursuant to the Housing Element and Fair Share Plan or otherwise intended to address the Township's fair share obligation, and includes, but is not limited to, an inclusionary development, a municipal construction project or a 100-percent affordable housing development.
AFFORDABLE HOUSING PROGRAM(S)
Any mechanism in a municipal fair share plan prepared or implemented to address a municipality's fair share obligation.
AFFORDABLE UNIT
A housing unit proposed or created pursuant to the Fair Housing Act and approved for crediting by the court and/or funded through an affordable housing trust fund.
AGE-RESTRICTED UNIT
A housing unit designed to meet the needs of, and exclusively for, the residents of an age-restricted segment of the population such that: 1) all the residents of the development wherein the unit is situated are 62 years of age or older; or 2) at least 80% of the units are occupied by one person who is 55 years of age or older; or 3) the development has been designated by the Secretary of the U.S. Department of Housing and Urban Development as "housing for older persons" as defined in Section 807(b)(2) of the Fair Housing Act, 42 U.S.C. § 3607.
AGENCY
The New Jersey Housing and Mortgage Finance Agency established by P.L. 1983, c. 530 (N.J.S.A. 55:14K-1 et seq.).
ALTERNATIVE LIVING ARRANGEMENTS
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 State of New Jersey Department of Community Affairs; residential health care facilities as regulated by the New Jersey Department of Health; group homes for the developmentally disabled and mentally ill as licensed and/or regulated by the New Jersey Department of Human Services; and congregate living arrangements.
ASSISTED LIVING RESIDENCE
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.
CERTIFIED HOUSEHOLD
A household that has been certified by an administrative agent as a low-income household or moderate-income household.
COAH
The Council on Affordable Housing, as established by the New Jersey Fair Housing Act (N.J.S.A. 52:27D-301 et seq.).
DCA
The State of New Jersey Department of Community Affairs.
DEFICIENT HOUSING UNIT
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.
DEVELOPER
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.
DEVELOPMENT
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.
FAIR SHARE PLAN
The plan that describes the mechanisms, strategies and the funding sources, if any, by which the Township proposes to address its affordable housing obligation as established in the Housing Element, including the draft ordinances necessary to implement that plan, and addresses the requirements of N.J.A.C. 5:93-5.
HOUSING ELEMENT
The portion of the Township's Master Plan, required by the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-28.b(3) and the Act, that includes the information required by N.J.A.C. 5:93-5.1 and establishes the Township's fair share obligation.
INCLUSIONARY DEVELOPMENT
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.
LOW-INCOME HOUSEHOLD
A household with a total gross annual household income equal to 50% or less of the regional median household income by household size.
LOW-INCOME UNIT
A restricted unit that is affordable to a low-income household.
MAJOR SYSTEM
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.
MARKET-RATE UNITS
Housing not restricted to low- and moderate-income households that may sell or rent at any price.
MEDIAN INCOME
The median income by household size for the applicable housing region, as adopted annually by COAH or a successor entity approved by the court.
MODERATE-INCOME HOUSEHOLD
A household with a total gross annual household income in excess of 50% but less than 80% of the regional median household income by household size.
MODERATE-INCOME UNIT
A restricted unit that is affordable to a moderate-income household.
MULTIFAMILY UNIT
A structure containing five or more dwelling units.
NONEXEMPT SALE
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.
RANDOM SELECTION PROCESS
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).
REGIONAL ASSET LIMIT
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.
REHABILITATION
The repair, renovation, alteration or reconstruction of any building or structure, pursuant to the Rehabilitation Subcode, N.J.A.C. 5:23-6.
RENT
The gross monthly cost of a rental unit to the tenant, including the rent paid to the landlord, as well as an allowance for tenant-paid utilities computed in accordance with allowances published by DCA for its Section 8 program. In assisted living residences, rent does not include charges for food and services.
RESTRICTED UNIT
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 UHORP or MONI.
TOWNSHIP
The Township of Marlboro, in Monmouth County, New Jersey.
UHAC
The Uniform Housing Affordability Controls set forth in N.J.A.C. 5:80-26 et seq.
VERY-LOW-INCOME HOUSEHOLD
A household with a total gross annual household income equal to 30% or less of the regional median household income by household size.
VERY-LOW-INCOME UNIT
A restricted unit that is affordable to a very-low-income household.
WEATHERIZATION
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.
A. 
To create realistic opportunities for the construction of affordable housing, the following properties shall be zoned to require inclusionary development or development of 100-percent affordable housing units:
(1) 
Block 213.01, Lot 44 (Bathgate/MDG site).
(2) 
Block 122, Lot 27.04 (M&M site).
(3) 
Block 146, Lots 25 and 26 (Weitz/Pallu).
(4) 
Block 119, Lot 16 (Weitz/Ashbel).
(5) 
Block 415, Lot 22 (EL at Marlboro).
(6) 
Block 149, Lot 16, Block 148, Lot 31 (Wildflower/The Place at Marlboro).
(7) 
Block 270, Lot 14 (Marlboro Motor Lodge).
(8) 
Block 355, Lots 6, 7, 8 & 11 (Buckdale).
(9) 
The Scattered Sites Redevelopment Area (Inclusionary "zoning" enacted via 2019 Scattered Sites Redevelopment Plan):
(a) 
Block 103, Lot 1.
(b) 
Block 111, Lots 10, 11, 12, and 13.
(c) 
Block 111, Lot 4 (3 Ronson).
(d) 
Block 146, Lots 28, 30, 31, 32, 33, and 38.
(e) 
Block 147, Lot 34.
(f) 
Block 170, Lots 2 and 3.
(g) 
Block 172, Lot 13.
B. 
Inclusionary developments shall adhere to the following project phasing 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%
C. 
Design:
(1) 
In inclusionary developments, to the extent possible, low- and moderate-income units shall be integrated with the market units.
(2) 
In inclusionary developments, low- and moderate-income units shall have access to all of the same common elements and facilities as the market units.
A. 
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) 
At least 13% of all restricted rental units within each bedroom distribution shall be very-low-income units (affordable to a household earning 30% or less of median income). The very-low-income units shall be counted as part of the required number of low-income units within the development.
(3) 
At least 25% of the obligation shall be met through rental units, including at least half in rental units available to families.
(4) 
A maximum of 25% of the Township's obligation may be met with age-restricted units. At least half of all affordable units in the Township's Plan shall be available to families.
(5) 
In each affordable development, at least 50% of the restricted units within each bedroom distribution shall be low-income units including that 13% shall be very-low-income.
(6) 
Affordable developments that are not age-restricted shall be structured in conjunction with realistic market demands such that:
(a) 
The combined number of efficiency and one-bedroom units shall be no greater than 20% of the total low- and moderate-income units;
(b) 
At least 30% of all low- and moderate-income units shall be two-bedroom units;
(c) 
At least 20% of all low- and moderate-income units shall be three-bedroom units; and
(d) 
The remaining units may be allocated among two- and three-bedroom units at the discretion of the developer.
(7) 
Affordable developments that are age-restricted shall be structured such that the number of bedrooms shall equal the number of age-restricted low- and moderate-income units within the inclusionary development. This standard may be met by having all one-bedroom units or by having a two-bedroom unit for each efficiency unit.
B. 
Accessibility requirements:
(1) 
The first floor of all restricted townhouse dwelling units and all restricted units in all other multistory buildings shall be subject to the technical design standards of the Barrier Free Subcode, N.J.A.C. 5:23-7.
(2) 
All restricted townhouse dwelling units and all restricted units in other multistory buildings in which a restricted dwelling unit is attached to at least one other dwelling unit shall have the following features:
(a) 
An adaptable toilet and bathing facility on the first floor; and
(b) 
An adaptable kitchen on the first floor; and
(c) 
An interior accessible route of travel on the first floor; and
(d) 
An adaptable room that can be used as a bedroom, with a door or the casing for the installation of a door, on the first floor; and
(e) 
If not all of the foregoing requirements in Subsection B(1)(a) through (d) can be satisfied, then an interior accessible route of travel must be provided between stories within an individual unit, but if all of the terms of Subsection B(1)(a) through (d) above have been satisfied, then an interior accessible route of travel shall not be required between stories within an individual unit; and
(f) 
An accessible entranceway as set forth at 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 the Township has collected funds from the developer sufficient to make 10% of the adaptable entrances in the development accessible:
[1] 
Where a unit has been constructed with an adaptable entrance, upon the request of a person with disabilities who is purchasing or will reside in the dwelling unit, an accessible entrance shall be installed.
[2] 
To this end, the builder of restricted units shall deposit funds within the Township affordable housing trust fund sufficient to install accessible entrances in 10% of the affordable units that have been constructed with adaptable entrances.
[3] 
The funds deposited under Subsection B(2)(f)[2] above shall be used by the Township for the sole purpose of making the adaptable entrance of an affordable unit accessible when requested to do so by a person with a disability who occupies or intends to occupy the unit and requires an accessible entrance.
[4] 
The developer of the restricted units shall submit a design plan and cost estimate to the Township Construction Official for the conversion of adaptable to accessible entrances.
[5] 
Once the Construction Official has determined that the design plan to convert the unit entrances from adaptable to accessible meet the requirements of the Barrier Free Subcode, N.J.A.C. 5:23-7, and that the cost estimate of such conversion is reasonable, payment shall be made to the Township's affordable housing trust fund in care of the Township Chief Financial Officer who shall ensure that the funds are deposited into the affordable housing trust fund and appropriately earmarked.
[6] 
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.
C. 
Maximum rents and sales prices:
(1) 
In establishing rents and sales prices of affordable housing units, the administrative agent shall follow the procedures set forth in UHAC utilizing the most recently published regional weighted average of the uncapped Section 8 income limits published by HUD and by the Superior Court.
(2) 
The maximum rent for restricted rental units within each affordable development shall be affordable to households earning no more than 60% of median income, and the average rent for restricted rental units shall be affordable to households earning no more than 52% of median income.
(3) 
The developers and/or municipal sponsors of restricted rental units shall establish at least one rent for each bedroom type for both low-income and moderate-income units, provided that at least 13% of all low- and moderate-income rental units shall be affordable to very-low-income households, earning 30% or less of the regional median household income, with such very-low-income units counted toward the low-income housing requirement.
(4) 
The maximum sales price of restricted ownership units within each affordable development shall be affordable to households earning no more than 70% of median income, and each affordable development must achieve an affordability average of 55% for restricted ownership units; in achieving this affordability average, moderate-income ownership units must be available for at least three different sales prices for each bedroom type, and low-income ownership units must be available for at least two different sales prices for each bedroom type.
(5) 
In determining the initial sales prices and rent levels for compliance with the affordability average requirements for restricted units other than assisted living facilities and age-restricted developments, the following standards shall be used:
(a) 
A studio unit 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:
(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; and
(c) 
A two-bedroom unit shall be affordable to a two-person household or to two one-person households.
(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 homeowner 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 Regional Income Limits chart. 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.
A. 
Affordable units shall utilize the same type of heating source as market units within an inclusionary development.
B. 
Tenant-paid utilities included in the utility allowance shall be set forth in the lease and shall be consistent with the utility allowance approved by HUD for its Section 8 program.
A. 
In referring certified households to specific restricted units, the administrative agent shall, to the extent feasible and without causing an undue delay in the occupancy of a unit, strive to:
(1) 
Provide an occupant for each bedroom;
(2) 
Provide children of different sexes with separate bedrooms;
(3) 
Provide separate bedrooms for parents and children; and
(4) 
Prevent more than two persons from occupying a single bedroom.
B. 
Additional provisions related to occupancy standards (if any) shall be provided in the municipal Operating Manual.
A. 
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 and thereafter until the Township takes action by ordinance to release the unit from such requirements; prior to such action, a restricted ownership unit shall remain subject to the requirements of N.J.A.C. 5:80-26.1, as may be amended and supplemented.
B. 
The affordability control period for a restricted ownership unit shall commence on the date the initial certified household takes title to the unit.
C. 
Prior to the issuance of the initial certificate of occupancy for a restricted ownership unit and upon each successive sale during the period of restricted ownership, the administrative agent shall determine the restricted price for the unit and shall also determine the nonrestricted, fair market value of the unit based on either an appraisal or the unit's equalized assessed value without the restrictions in place.
D. 
At the time of the initial sale of the unit, the initial purchaser shall execute and deliver to the administrative agent a recapture note obligating the purchaser (as well as the purchaser's heirs, successors and assigns) to repay, upon the first nonexempt sale after the unit's release from the restrictions set forth in this 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.
E. 
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.
(1) 
Provisions for first-purchase money mortgagees.
(a) 
The terms and restrictions of this chapter shall be subordinate only to the first-purchase money mortgage lien on any very-low-, low- and moderate-income unit and in no way shall impair the first-purchase money mortgagee's ability to exercise the contract remedies available to it in the event of default as such remedies are set forth in the first-purchase money mortgage documents for the unit.
(b) 
So long as the first-purchase money mortgage is not sold to the Federal National Mortgage Association or in the secondary mortgage market, the first-purchase money mortgagee and/or mortgage servicer shall serve written notice upon the Agency within 10 days after the first-purchase money mortgage is three months in arrears and within 10 calendar days of the filing of the complaint seeking foreclosure of the first-purchase money mortgage held on a very-low-, low- and moderate-income unit.
(c) 
The obligation of the first-purchase money mortgagee and/or servicer to notify the Affordable Housing Agency and/or the Administrative Agent shall cease automatically and immediately upon the sale of the first-purchase money mortgage to the Federal National Mortgage Association or in the secondary mortgage market, unless the rules and regulations are amended so as to not prohibit or exclude placing such obligation, in which case an instrument duly evidencing same must be recorded with the office of the Recorder, Monmouth County, New Jersey, and the Clerk of the Township of Marlboro before any such obligation shall exist.
(d) 
Provided that the first-purchase money mortgagee is obligated to give the Affordable Housing Agency the above-mentioned notices, the first-purchase money mortgage shall also serve written notice of any proposed foreclosure sale upon the Affordable Housing Agency at least 30 days prior to the first scheduled date of such sale.
(e) 
The first-purchase money mortgagee shall serve notice upon the Affordable Housing Agency within 30 days of the sale of the first-purchase money mortgage to the Federal National Mortgage Association or in the secondary mortgage market.
(2) 
The Township of Marlboro and/or the Affordable Housing Agency or any instrumentality designated by the Township shall have the right to purchase any mortgage which is in default at any time prior to the entry of a foreclosure judgment or within the redemption period thereafter. Notification of a default and of the institution of a foreclosure action and of a Sheriff's sale shall be served in writing upon the Chairman of the Affordable Housing Agency as aforesaid. The Township of Marlboro shall at all times be considered a party defendant and/or shall have the right to intervene in any foreclosure action seeking foreclosure of a first mortgage and/or shall have the right to redeem and acquire the owner's equity of redemption or to acquire the unit from the owner upon such terms and conditions as may be determined by the Affordable Housing Agency.
(3) 
In the event of foreclosure, the Affordable Housing Agency shall attempt to identify a qualified very-low-, low- and moderate-income purchaser(s) as the case may be and shall give notice to the foreclosing party, and effort shall be made within the confines of the applicable foreclosure laws to sell the housing unit to qualified very-low-, low- and moderate-income households. If such efforts are unsuccessful, the restrictive covenants shall remain in full force and effect. In any case, the Township shall not lose credit for the very-low-, low- and moderate-income unit relating to which the foreclosure proceeding took place.
(4) 
Surplus funds. In the event of a foreclosure sale by the holder of the first-purchase money mortgage, the owner shall be personally obligated to pay to the Affordable Housing Agency any surplus funds, which shall be deposited in the Township's Affordable Housing Trust Fund. For purposes of this subsection, surplus funds shall be the total amount paid to the Sheriff in excess of the greater of the maximum resale price of the unit and the amount required to pay and satisfy the first-purchase money mortgage, including the costs of foreclosure plus any second mortgages approved by the Affordable Housing Agency. Surplus funds shall also include all payments to any junior creditors out of such surplus funds, even if such were to the exclusion of the owner. The Affordable Housing Agency shall be given a first-priority lien, second only to the first-purchase money mortgagee of a unit and any taxes or public assessments by a duly authorized governmental body, equal to the full amount of such surplus funds. This obligation of the owner to pay this full amount of surplus funds to the Affordable Housing Agency shall be deemed to be a personal obligation of the owner of record at time of the foreclosure sale, and the Agency shall be empowered to enforce the obligation of the owner in any appropriate court of law or equity as though the same were a personal contractual obligation of the owner. Neither the first-purchase money mortgagee nor the purchaser at the foreclosure sale shall be responsible or liable to the Affordable Housing Agency for any portion of this excess. The Affordable Housing Agency may utilize up to 30% of the surplus funds realized in any one calendar year, but in no event to exceed $10,000 per calendar year, for the purpose of funding operating expenses of the year, for the purpose of funding operating expenses of the Affordable Housing Agency. Other surplus funds shall be used for increasing the opportunities for affordable housing within the Township in accordance with the provisions of this chapter.
(5) 
Owner's equity.
(a) 
Owner's equity shall be determined to be the difference between the maximum resale price of the unit and the total of the assessments, property taxes and other liens which may have been attached against the unit prior to the foreclosure, provided that such total is less than the maximum resale price.
(b) 
If there are sums to which the owner is properly entitled, such sums shall be turned over to the owner or placed in an escrow by the Agency for the owner for a maximum period of two years. Any interest accrued or earned on such balance while being held in escrow shall belong to and shall be paid to the Agency.
(c) 
This provision is subject, however, to applicable laws of the State of New Jersey governing the distribution and payment of proceeds of foreclosure sales.
F. 
A restricted ownership unit shall be required to obtain a continuing certificate of occupancy or a certified statement from the Construction Official stating that the unit meets all Uniform Construction 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.
A. 
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:
(1) 
The initial purchase price for a restricted ownership unit shall be approved by the administrative agent.
(2) 
The administrative agent shall approve all resale prices, in writing and in advance of the resale, to assure compliance with the foregoing standards.
(3) 
The master deeds of inclusionary developments shall provide no distinction between the condominium or homeowner association fees and special assessments paid by low- and moderate-income purchasers and those paid by market purchasers.
(4) 
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.
A. 
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.
B. 
Notwithstanding the foregoing, however, the administrative agent may, upon approval by the Township Mayor and Council, and subject to the court's approval, permit moderate-income purchasers to buy low-income units in housing markets if the administrative agent determines that there is 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.
C. 
A certified household that purchases a restricted ownership unit must occupy it as the certified household's principal residence and shall not lease the unit; provided, however, that the administrative agent may permit the owner of a restricted ownership unit, upon application and a showing of hardship, to lease the restricted unit to another certified household for a period not to exceed one year.
D. 
The administrative agent shall certify a household as eligible for a restricted ownership unit when the household is a low-income household or a moderate-income household, as applicable to the unit, and the estimated monthly housing cost for the particular unit (including principal, interest, taxes, homeowner and private mortgage insurance and condominium or homeowner association fees, as applicable) does not exceed 33% of the household's eligible monthly income.
A. 
Prior to incurring any indebtedness to be secured by a restricted ownership unit, the owner shall apply to the administrative agent for a determination in writing that the proposed indebtedness complies with the provisions of this section, and the administrative agent shall issue such determination prior to the owner incurring such indebtedness.
B. 
With the exception of first purchase money mortgages, neither an owner nor a lender shall at any time cause or permit the total indebtedness secured by a restricted ownership unit to exceed 95% of the maximum allowable resale price of the unit, as such price is determined by the administrative agent in accordance with N.J.A.C.5:80-26.6(b).
A. 
The owners of restricted ownership units may apply to the administrative agent to increase the maximum sales price for the unit on the basis of capital improvements made since the purchase of the unit. Eligible capital improvements shall be those that render the unit suitable for a larger household or that 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.
B. 
Upon the resale of a restricted ownership unit, all items of property that are permanently affixed to the unit or were included when the unit was initially restricted (for example, refrigerator, range, washer, dryer, dishwasher, wall-to-wall carpeting) shall be included in the maximum allowable resale price. Other items may be sold to the purchaser at a reasonable price that has been approved by the administrative agent at the time of the signing of the agreement to purchase. The purchase of central air conditioning installed subsequent to the initial sale of the unit and not included in the base price may be made a condition of the unit resale provided the price, which shall be subject to ten-year, straight-line depreciation, has been approved by the administrative agent. Unless otherwise approved by the administrative agent, the purchase of any property other than central air conditioning shall not be made a condition of the unit resale. The owner and the purchaser must personally certify at the time of closing that no unapproved transfer of funds for the purpose of selling and receiving property has taken place at the time of or as a condition of resale.
A. 
Control periods for restricted rental units shall be in accordance with N.J.A.C. 5:80-26.11, 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 and thereafter until the Township takes action by ordinance to release the unit from such requirements. Prior to such action, a restricted rental unit shall remain subject to the requirements of N.J.A.C. 5:80-26.1, as may be amended and supplemented.
B. 
Deeds of all real property that include restricted rental units shall contain deed restriction language. The deed restriction shall have priority over all mortgages on the property, and the deed restriction shall be filed by the developer or seller with the records office of the County of Monmouth. The deed shall also identify each affordable unit by apartment number and/or address and whether that unit is designated as a very-low-, low- or moderate-income unit. Neither the unit nor its affordability designation shall change throughout the term of the deed restriction. A copy of the filed document shall be provided to the administrative agent within 30 days of the receipt of a certificate of occupancy.
C. 
A restricted rental unit shall remain subject to the affordability controls of this chapter despite the occurrence of any of the following events:
(1) 
Sublease or assignment of the lease of the unit;
(2) 
Sale or other voluntary transfer of the ownership of the unit; or
(3) 
The entry and enforcement of any judgment of foreclosure on the property containing the unit.
A. 
A written lease shall be required for all restricted rental units and tenants shall be responsible for security deposits and the full amount of the rent as stated on the lease. A copy of the current lease for each restricted rental unit shall be provided to the administrative agent.
B. 
No additional fees or charges shall be added to the approved rent (except, in the case of units in an assisted living residence, to cover the customary charges for food and services) without the express written approval of the administrative agent.
C. 
Application fees (including the charge for any credit check) shall not exceed 5% of the monthly rent of the applicable restricted unit and shall be payable to the administrative agent to be applied to the costs of administering the controls applicable to the unit as set forth in this chapter.
D. 
No rent control ordinance or other pricing restriction shall be applicable to either the market units or the affordable units in any development in which at least 15% of the total number of dwelling units are restricted rental units in compliance with this chapter.
A. 
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:
(1) 
Very-low-income rental units shall be reserved for households with a gross household income less than or equal to 30% of median income.
(2) 
Low-income rental units shall be reserved for households with a gross household income less than or equal to 50% of median income.
(3) 
Moderate-income rental units shall be reserved for households with a gross household income less than 80% of median income.
B. 
The administrative agent shall certify a household as eligible for a restricted rental unit when the household is a very-low-income household, low-income household or a moderate-income household, as applicable to the unit, and the rent proposed for the unit does not exceed 35% (40% for age-restricted units) of the household's eligible monthly income as determined pursuant to N.J.A.C. 5:80-26.16, as may be amended and supplemented; provided, however, that this limit may be exceeded if one or more of the following circumstances exists:
(1) 
The household currently pays more than 35% (40% for households eligible for age-restricted units) of its gross household income for rent, and the proposed rent will reduce its housing costs;
(2) 
The household has consistently paid more than 35% (40% for households eligible for age-restricted units) of eligible monthly income for rent in the past and has proven its ability to pay;
(3) 
The household is currently in substandard or overcrowded living conditions;
(4) 
The household documents the existence of assets with which the household proposes to supplement the rent payments; or
(5) 
The household documents reliable anticipated third-party assistance from an outside source such as a family member in a form acceptable to the administrative agent and the owner of the unit.
C. 
The applicant shall file documentation sufficient to establish the existence of the circumstances in Subsection B(1) through (5) above with the administrative agent, who shall counsel the household on budgeting.
A. 
The Township 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. The Township shall adopt an ordinance creating the position of municipal housing liaison. The Township shall adopt a resolution appointing a 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 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.
B. 
The municipal housing liaison shall be responsible for oversight and administration of the affordable housing program for the Township, including the following responsibilities which may not be contracted out to the administrative agent:
(1) 
Serving as the Township's primary point of contact for all inquiries from the state, affordable housing providers, administrative agents and interested households;
(2) 
Monitoring the status of all restricted units in the Township's Fair Share Plan;
(3) 
Compiling, verifying and submitting annual monitoring reports as may be required by the court;
(4) 
Coordinating meetings with affordable housing providers and administrative agents, as needed; and
(5) 
Attending continuing education opportunities on affordability controls, compliance monitoring and affirmative marketing at least annually and more often as needed.
C. 
Subject to the approval of the court, the Township shall designate one or more administrative agent(s) to administer newly constructed affordable units in accordance with 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 the court. The Operating Manual(s) shall be available for public inspection in the office of the Township Clerk, in the office of the municipal housing liaison, and in the office(s) of the administrative agent(s). The municipal housing liaison shall supervise the contracting administrative agent(s).
The administrative agent shall be an independent entity serving under contract to and reporting to the Township. For new sale and rental developments, all of 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. For resales, single-family homeowners and condominium homeowners shall be required to pay 3% of the sales price for services provided by the administrative agent related to the resale of their homes. That fee shall be collected at closing and paid directly to the administrative agent. The administrative agent shall perform the duties and responsibilities of an administrative agent as set forth in UHAC, including those set forth in Sections 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 Township's affirmative marketing plan and the provisions of N.J.A.C. 5:80-26.15; and
(2) 
Providing counseling or contracting to provide counseling services to low- and moderate-income applicants on subjects such as budgeting, credit issues, mortgage qualification, rental lease requirements, and landlord/tenant law.
B. 
Household certification:
(1) 
Soliciting, scheduling, conducting and following up on interviews with interested households;
(2) 
Conducting interviews and obtaining sufficient documentation of gross income and assets upon which to base a determination of income eligibility for a low- or moderate-income unit;
(3) 
Providing written notification to each applicant as to the determination of eligibility or noneligibility;
(4) 
Requiring that all certified applicants for restricted units execute a certificate substantially in the form, as applicable, of either the ownership or rental certificates set forth in Appendices J and K of N.J.A.C. 5:80-26.1 et seq.;
(5) 
Creating and maintaining a referral list of eligible applicant households living in the housing region and eligible applicant households with members working in the housing region where the units are located;
(6) 
Employing a random selection process as provided in the affirmative marketing plan of the Township when referring households for certification to affordable units; and
(7) 
Notifying the following entities of the availability of affordable housing units in the Township of Marlboro: Fair Share Housing Center, the New Jersey State Conference of the NAACP, the Latino Action Network, STEPS, OCEAN Inc., the Greater Red Bank, Asbury Park/Neptune, Bayshore, Greater Freehold, Greater Long Branch, and Trenton branches of the NAACP, and the Supportive Housing Association.
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 Monmouth County Register of Deeds or 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 rentals:
(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 rental; 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 Township of an owner's intent to sell a restricted unit; and
(4) 
Making determinations on requests by owners of restricted units for hardship waivers.
F. 
Enforcement:
(1) 
Securing annually from the Township a list of all affordable housing units for which tax bills are mailed to absentee owners, and notifying all such owners that they must either move back to their unit or sell it;
(2) 
Securing from all developers and sponsors of restricted units, at the earliest point of contact in the processing of the project or development, written acknowledgement of the requirement that no restricted unit can be offered, or in any other way committed, to any person, other than a household duly certified to the unit by the administrative agent;
(3) 
Posting annually in all rental properties, including two-family homes, 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 Township's affordable housing trust fund; and
(6) 
Creating and publishing a written operating manual for each affordable housing program administered by the administrative agent, to be approved by the Township Mayor and Council and 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 the court.
(3) 
The administrative agent shall attend continuing education sessions on affordability controls, compliance monitoring, and affirmative marketing at least annually and more often as needed.
A. 
The Township shall adopt by resolution an affirmative marketing plan, subject to approval of the court that is compliant with N.J.A.C. 5:80-26.15, as may be amended and supplemented.
B. 
The affirmative marketing plan is a regional marketing strategy designed to attract buyers and/or renters of all majority and minority groups, regardless of race, creed, color, national origin, ancestry, marital or familial status, gender, affectional or sexual orientation, disability, age or number of children to housing units which are being marketed by a developer, sponsor or owner of affordable housing. The affirmative marketing plan is intended to target those potentially eligible persons who are least likely to apply for affordable units in that region. In addition, the affirmative marketing plan shall maintain certain notification requirements. It is a continuing program that directs marketing activities toward Housing Region 4 and is required to be followed throughout the period of restriction.
C. 
The affirmative marketing plan shall provide a regional preference for all households that live and/or work in Housing Region 4, comprised of Monmouth, Mercer, and Ocean Counties.
D. 
The Township has the ultimate responsibility for adopting the affirmative marketing plan and for the proper administration of the affirmative marketing program, including initial sales and rentals and resales and rerentals. The administrative agent designated by the Township shall implement the affirmative marketing plan to assure the affirmative marketing of all affordable units.
E. 
In implementing the affirmative marketing plan, the administrative agent shall provide a list of counseling services to low- and moderate-income applicants on subjects such as budgeting, credit issues, mortgage qualification, rental lease requirements, and landlord/tenant law.
F. 
The affirmative marketing plan shall describe the media to be used in advertising and publicizing the availability of housing. In implementing the affirmative marketing plan, the administrative agent shall consider the use of language translations where appropriate.
G. 
The affirmative marketing process for available affordable units shall begin at least four months (120 days) prior to the expected date of occupancy.
H. 
Applications for affordable housing shall be available in several locations, including, at a minimum, the County Administration Building and/or the County Library for each county within the housing region; the municipal administration building and the municipal library in the Township in which the units are located; and the developer's rental office. Pre-applications shall be emailed or mailed to prospective applicants upon request.
(1) 
In addition to other affirmative marketing strategies, the Administrative Agent shall provide specific notice of the availability of affordable housing units in Marlboro, and copies of the application forms, to the following entities: Fair Share Housing Center, the new Jersey State Conference of the NAACP, the Latino Action Network, STEPS, OCEAN Inc., the Supportive Housing Association, and the Greater Red Bank, Asbury Park/Neptune, Bayshore, Greater Freehold, Greater Long Branch, and Trenton branches of the NAACP.
I. 
The costs of advertising and affirmative marketing of the affordable units shall be the responsibility of the developer, sponsor or owner.
A. 
As provided under law pursuant to N.J.S.A. 52:27D-311, a preference of up to 50% of the affordable housing units in an inclusionary affordable housing development or a 100-percent affordable housing development in the Township of Marlboro shall be provided to low- and moderate-income veterans who served in time of war or other emergency, as defined in N.J.S.A. 54:4-8.10.
(1) 
This preference shall be established in the applicant selection process for available affordable units so that applicants who are veterans who served in time of war or other emergency, as referenced in N.J.S.A. 52:27D-311, and who apply within 90 days of the initial marketing period shall receive preference for the rental of the agreed-upon percentage of affordable units. After the first 90 days of the initial 120-day marketing period, if any of those units subject to the preference remain available, then applicants from the general public shall be considered for occupancy. Following the initial 120-day marketing period, previously qualified applicants and future qualified applicants who are veterans who served in time of war or other emergency, as referenced in N.J.S.A. 52:27D-311, shall be placed on a special waiting list as well as the general waiting list. The veterans on the special waiting list shall be given preference for affordable units, as the units become available, whenever the percentage of preference-occupied units falls below the agreed upon percentage. Any agreement to provide affordable housing preferences for veterans pursuant to N.J.S.A. 52:27D-311 shall not affect a municipality's ability to receive credit for the unit from the council, or its successor.
B. 
If legislation is passed allowing for a first responder preference, the Township reserves the right to allow such a preference consistent with allowable law. At the time of adoption of this ordinance, the Township recognizes that such a preference is not allowed under law. "First responder" shall be defined as a law enforcement officer; paid or volunteer firefighter; paid or volunteer member of a duly incorporated first aid, emergency, ambulance, or rescue squad association; or any other person who, in the course of the person's employment, is dispatched to the scene of a motor vehicle accident or other emergency situation for the purpose of providing medical care or other emergency assistance; and who, in the case of all the foregoing, has served in that capacity for at least two years.
(1) 
If legislation is passed allowing for such a first responder preference, this preference shall be established in the applicant selection process for available affordable units so that applicants who are first responders, and who apply within 90 days of the initial 120-day marketing period, shall receive preference for the rental of the agreed-upon percentage of affordable units. After the first 90 days of the initial 120-day marketing period, if any of those units subject to the preference remain available, then applicants from the general public shall be considered for occupancy. Following the initial 120-day marketing period, previously qualified applicants and future qualified applicants who are first responders shall be placed on a special waiting list as well as the general waiting list. The first responders on the special waiting list shall be given preference for affordable units, as the units become available, whenever the percentage of preference-occupied units falls below the agreed upon percentage. Any agreement to provide affordable housing preferences for first responders pursuant to N.J.S.A. 52:27D-311 shall not affect a municipality's ability to receive credit for the unit from the council, or its successor.
A. 
The responsibilities of the developer shall include but not be limited to the following:
(1) 
Submission of information as to financing terms readily available to very-low-, low- and moderate-income households for use by the Affordable Housing Agency in computing maximum sales prices.
(2) 
Submission of an affordable housing plan and an affirmative marketing plan to the Affordable Housing Agency for approval, and submission of proofs of publication to ensure compliance with said plan.
(3) 
The marketing of all very-low-, low- and moderate-income units in accordance with the requirements of this chapter.
(4) 
Submission of quarterly reports to the Affordable Housing Agency detailing the number of very-low-, low- and moderate-income households who have signed leases or purchase agreements, as well as the number who have taken occupancy of lower-income units, including household size, number of bedrooms in the unit, sales price and monthly carrying costs or, in the case of rental units, the monthly rental charges and utilities included.
B. 
The developer's responsibilities hereunder shall expire automatically with respect to for-sale of very-low-, low- and moderate- income units upon the date upon which the last very-low-, low- and moderate-income unit within the particular development is sold by the developer. With respect to the rental of very-low-, low- and moderate-income units, the developer's responsibilities shall be assumed by the landlord and shall be performed by the landlord so long as such unit is a rental of a very-low-, low- and moderate-income unit and is subject to the restrictions of this chapter.
A. 
Prior to reselling or renting his or her very-low-, low- or moderate-income unit, the owner shall provide written proof to the Affordable Housing Agency that the resale or rental has been approved by the authorized state agency.
B. 
The owner shall only resell or rent his or her very-low-, low- or moderate-income unit to a qualified purchaser or renter as determined by the Township's administrative agent.
C. 
The owner shall be responsible for guaranteeing that the necessary documents are executed and filed at the closing of title or rental of a very-low-, low- or moderate-income unit to assure that the unit remains affordable to and occupied by very-low-, low- or moderate-income households.
D. 
In the event that any first mortgagee or other creditor of an owner of a very-low-, low- and/or moderate-income unit exercises its contractual or legal remedies available in the event of default or nonpayment by the owner of a very-low-, low- and moderate-income unit, the owner shall notify the Affordable Housing Agency in writing within 10 days of such exercise by the first mortgagee or creditor and no later than 10 days after service of any summons and complaint.
E. 
Any owner of a very-low-, low- and moderate-income unit shall notify the Affordable Housing Agency within 10 days, in writing, of any default in the performance by the owner of any obligation under either the master deed of the condominium association, including the failure to pay any lawful and proper assessment by the condominium association, or any mortgage or other lien against the very-low-, low- and moderate-income unit, which default is not cured within 60 days of the date upon which the default first occurs.
F. 
The owner shall not permit any lien of any kind, which includes, but is not limited to, any lien imposed by any federal, state or municipal authority, other than a first-purchase money mortgage, Affordable Housing Agency approved second mortgage and/or lien of the Affordable Housing Agency to attach and remain on the property for more than 60 days.
G. 
The owner of a very-low-, low- and moderate-income unit shall keep the unit in good repair and shall not commit waste thereon.
H. 
The owner shall pay all taxes and public assessments and assessments by the condominium association levied upon or assessed against the unit, or any part thereof, as and when the same becomes due and before penalties accrue.
I. 
If a very-low-, low- and moderate-income unit is part of a condominium association, the owner, in addition to paying any assessments required to be paid by the master deed of the condominium, shall further fully comply with all of the terms, covenants or conditions of said master deed, as well as fully comply with all terms, conditions and restrictions of this chapter.
J. 
The owner will pay all charges of any utility authority when the same become due and before penalties accrue.
As to any complex, development or property which contains a very-low-, low- or moderate-income restricted unit for which a condominium association organized under the Condominium Act (N.J.S.A. 46:8B-1 et seq.), or a homeowners' association has control, management and/or supervision over such affordable unit(s), the condominium or homeowners' association shall provide written notice to the Agency if any owner and/or tenant of an affordable unit (regardless of whether it is very-low-, low- or moderate-income qualified) shall become delinquent in the payment of any monthly assessment(s), fee(s) or charge(s) where the delinquency has existed for a period of 90 days. This written notice shall be provided to the Agency regardless of the amount of the assessment(s), fee(s), or charge(s) that are delinquent for a period of 90 days.
A. 
Upon the occurrence of a breach of any of the regulations governing the affordable unit by an owner, developer or tenant, the Township shall have all remedies provided at law or equity, including but not limited to foreclosure, tenant eviction, a requirement for household recertification, acceleration of all sums due under a mortgage, recuperation of any funds from a sale 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 Township 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 Township may file a court action pursuant to N.J.S.A. 2A:58-11 alleging a violation or violations of the regulations governing the affordable housing unit. 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 Township 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 Township 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 Township, 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 Township, including attorney's 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 Township for any and all costs and expenses incurred in connection with either the court action resulting in the judgment of violation or the sheriff's sale. In the event that the proceeds from the sheriff's sale are insufficient to reimburse the Township in full as aforesaid, the violating owner shall be personally responsible for the full extent of such deficiency, in addition to any and all costs incurred by the Township in connection with collecting such deficiency. In the event that a surplus remains after satisfying all of the above, such surplus, if any, shall be placed in escrow by the Township for the owner and shall be held in such escrow for a maximum period of two years or until such earlier time as the owner shall make a claim with the Township for such. Failure of the owner to claim such balance within the two-year period shall automatically result in a forfeiture of such balance to the Township. Any interest accrued or earned on such balance while being held in escrow shall belong to and shall be paid to the Township, whether such balance shall be paid to the owner or forfeited to the Township.
(c) 
Foreclosure by the Township due to violation of the regulations governing affordable housing units shall not extinguish the restrictions of the regulations governing affordable housing units as the same apply to the low- and moderate-income unit. Title shall be conveyed to the purchaser at the sheriff's sale, subject to the restrictions and provisions of the regulations governing the affordable housing unit. The owner determined to be in violation of the provisions of this plan and from whom title and possession were taken by means of the sheriff's sale shall not be entitled to any right of redemption.
(d) 
If there are no bidders at the sheriff's sale, or if insufficient amounts are bid to satisfy the first purchase money mortgage and any prior liens, the Township may acquire title to the 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 Township shall obligate the owner to accept an offer to purchase from any qualified purchaser which may be referred to the owner by the Township, with such offer to purchase being equal to the maximum resale price of the low- and moderate-income unit as permitted by the regulations governing affordable housing units.
(f) 
The owner shall remain fully obligated, responsible and liable for complying with the terms and restrictions of governing affordable housing units until such time as title is conveyed from the owner.
Appeals from all decisions of an administrative agent appointed pursuant to this chapter shall be filed in writing with the court.
[Added 12-12-2019 by Ord. No. 2019-12]
A. 
In Holmdel Builder's Association v. Holmdel Township, 121 N.J. 550 (1990), the New Jersey Supreme Court determined that mandatory development fees are authorized by the Fair Housing Act of 1985, N.J.S.A. 52:27d-301 et seq., and the State Constitution, subject to the Council on Affordable Housing's (COAH's) adoption of rules.
B. 
Pursuant to P.L. 2008, c. 46, § 8 (N.J.S.A. 52:27D-329.2) and the Statewide Non-Residential Development Fee Act (N.J.S.A. 40:55D-8.1 through 40:55D-8.7), COAH is authorized to adopt and promulgate regulations necessary for the establishment, implementation, review, monitoring and enforcement of municipal affordable housing trust funds and corresponding spending plans. Municipalities that are under the jurisdiction of the Council or court of competent jurisdiction and have a COAH-approved spending plan may retain fees collected from nonresidential development.
C. 
In Re: Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing, 221 N.J. 1 (2015), also known as the Mount Laurel IV decision, the Supreme Court remanded COAH's duties to the Superior Court. As a result, affordable housing development fee collections and expenditures from the municipal affordable housing trust funds to implement municipal Third Round Fair Share Plans through July 1, 2025, are under the Court's jurisdiction and are subject to approval by the Court.
D. 
This article establishes standards for the collection, maintenance, and expenditure of development fees pursuant to COAH's regulations and in accordance with P.L. 2008, c. 46, §§ 8 and 32 through 38. 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, codified at N.J.A.C. § 5:93-8.
This section shall become effective at such time that the Superior Court approves the Township's development fee ordinance in accordance with N.J.A.C. 5:93-8.
The following terms, as used in this article, shall have the following meanings:
AFFORDABLE HOUSING DEVELOPMENT
A development included in the Housing Element and Fair Share Plan, and includes, but is not limited to, an inclusionary development, a municipal construction project or a 100-percent-affordable development.
COAH or THE COUNCIL
The New Jersey Council on Affordable Housing established under the Fair Housing Act which previously had primary jurisdiction for the administration of housing obligations in accordance with sound regional planning consideration in the state. Pursuant to the opinion and order of the New Jersey Supreme Court dated March 10, 2015, in the matter of "In re Adoption of N.J.A.C. 5:96 and 5:97 by N.J. Council on Affordable Housing (M-392-14) 067126," any reference to COAH or the Council shall be understood to refer to the Superior Court of New Jersey, Law Division-Morris County.
DEVELOPER
Any person, partnership, association, company or corporation that is the legal or beneficial owner or owners of a lot or any land proposed to be included in a proposed development including the holder of an option to contract or purchase, or other person having an enforceable proprietary interest in such land.
DEVELOPMENT FEES
Funds paid by a developer for the improvement of property as permitted in N.J.A.C. 5:93-8.
EQUALIZED ASSESSED VALUE
The assessed value of a property divided by the current average ratio of assessed to true value for the municipality in which the property is situated, as determined in accordance with §§ 1, 5, and 6 of P.L. 1973, c. 123 (N.J.S.A. 54:1-35a through 54:1-35c).
GREEN BUILDING STRATEGIES
Those strategies that minimize the impact of development on the environment, and enhance the health, safety and well-being of residents by producing durable, low-maintenance, resource-efficient housing while making optimum use of existing infrastructure and community services.
A. 
Imposed fees.
(1) 
Within all zone districts, residential developers, except for developers of the types of development specifically exempted below, shall pay a fee of 1.5% of the equalized assessed value for residential development, provided no increased density is permitted.
(2) 
When an increase in residential density pursuant to N.J.S.A. 40:55D-70.d(5) (known as a "d" variance) has been permitted, developers shall be required to pay a development fee of 6% of the equalized assessed value for each additional unit that may be realized. However, if the zoning on a site has changed during the two-year period preceding the filing of such a variance application, the base density for the purposes of calculating the bonus development fee shall be the highest density permitted by right during the two-year period preceding the filing of the variance application.
(3) 
Within the Stream Corridor Preservation Residential Zone (SCPR), a density bonus is permitted for the cluster development option provided for in this zone. Residential developers within this zone shall pay a development fee of 6% of the equalized assessed value for each additional unit permitted as a result of the density bonus under the cluster development option. On the remaining units, the developer shall pay a development fee of 1.50% of equalized assessed value. Under the cluster development option in the SCPR Zone District, a maximum density of 0.8 lot per gross acre is permitted as a density bonus. In noncluster developments, the maximum density in the SCPR Zone District is 0.43 lot per gross acre. (The density bonus equals a net of 0.37 lot per gross acre.) If a variance is granted permitting development in the SCPR Zone District pursuant to N.J.S.A. 40:55D-70d(5) (referred to as a "d" variance or density variance), then the developer shall be subject to a bonus development fee of 6% of the equalized assessed value per unit on each additional residential unit realized above that which is permitted by right under the existing zoning. On the remaining units, the developer shall be subject to a development fee of 1.50% of the equalized assessed value per unit. However, if the zoning on a site has changed during the two-year period preceding the filing of the "d" variance application, then the base density for the purposes of calculating the bonus development fee shall be the highest density permitted by right during the two years preceding the filing of the "d" variance application.
(4) 
Within the R-60/15 Residential District, a density bonus is permitted for the cluster development option provided for in this residential district. Residential developers within this residential district shall pay a development fee of 6% of the equalized assessed value for each additional unit permitted as a result of the density bonus under the cluster development option. On the remaining units, the developer shall pay a development fee of 1.50% of the equalized assessed value. Under the cluster development option in the R-60/15 Residential District, a maximum density of one lot per gross acre is permitted as a density bonus. In noncluster developments, the maximum density in this residential district is 0.58 lot per gross acre. (The density bonus equals a net of 0.42 lot per gross acre.) If a variance is granted permitting development in the R-60/15 Zone District pursuant to N.J.S.A. 40:55D-70d(5) (referred to as a "d" variance or density variance), then the developer shall be subject to a bonus development fee of 6% of the equalized assessed value per unit on each additional residential unit realized above that which is permitted by right under the existing zoning. On the remaining units, the developer shall be subject to a development fee of 1.50% of the equalized assessed value per unit. However, if the zoning on a site has changed during the two-year period preceding the filing of the "d" variance application, then the base density for the purposes of calculating the bonus development fee shall be the highest density permitted by right during the two years preceding the filing of the "d" variance application.
(5) 
For residential developments in the R-40/30 Residential District which are located on properties that are not included within the consent order identified in § 220-50C of the Code of the Township of Marlboro, New Jersey, residential developers shall pay a development fee in the amount of 6% of the equalized assessed value for each additional unit permitted as a result of rezoning from the R-80 Residential District. On the remaining units, the developer shall pay a development fee of 1.50% of the equalized assessed value. Under the R-40/30 Residential District, a maximum density of 0.87 unit per acre is permitted. Under the previous R-80 Residential District, a maximum density of 0.43 unit per acre is permitted. If a variance is granted permitting development in the R-40/30 Zone District pursuant to N.J.S.A. 40:55D-70d(5) (referred to as a "d" variance or density variance), then the developer shall be subject to a bonus development fee of 6% of the equalized assessed value per unit on each additional residential unit realized above that which is permitted by right under the existing zoning. On the remaining units, the developer shall be subject to a development fee of 1.50% of the equalized assessed value per unit. However, if the zoning on a site has changed during the two-year period preceding the filing of the "d" variance application, then the base density for the purposes of calculating the bonus development fee shall be the highest density permitted by right during the two years preceding the filing of the "d" variance application.
B. 
Eligible exactions, ineligible exactions and exemptions for residential development.
(1) 
Affordable housing developments shall be exempt from development fees. All other forms of new construction shall be subject to development fees unless exempted below.
(2) 
Developers of low- and moderate-income units shall be exempt from paying development fees.
(3) 
Developments that have received preliminary or final approval prior to the effective date of the Township's amended development fee ordinance shall be subject to the law in effect at the time of such approval, unless the developer seeks a substantial change in the approval.
(4) 
All single-family residential additions, renovations and accessory structures shall be exempt; however, all new residential dwelling units shall be subject to a development fee.
(5) 
All multifamily additions, renovations and accessory structures not requiring site plan approval shall be exempt; however, all new residential dwelling units shall be subject to a development fee.
(6) 
Homes replaced as a result of a natural disaster (such as fire or flood) shall be exempt from the payment of a development fee.
A. 
Imposed fees.
(1) 
Within all zoning districts, nonresidential developers, except for developers of the types of development specifically exempted, shall pay a fee equal to 2.5% of the equalized assessed value of the land and improvements, for all new nonresidential construction on an unimproved lot or lots.
(2) 
Nonresidential developers, except for developers of the types of development specifically exempted, shall also pay a fee equal to 2.5% of the increase in equalized assessed value resulting from any additions to existing structures to be used for nonresidential purposes.
(3) 
Development fees shall be imposed and collected when an existing structure is demolished and replaced. The development fee of 2.5% shall be calculated on the difference between the equalized assessed value of the preexisting land and improvement and the equalized assessed value of the newly improved structure, i.e., land and improvement at the time final certificate of occupancy is issued. If the calculation required under this section results in a negative number, the nonresidential development fee shall be zero.
B. 
Eligible exactions, ineligible exactions and exemptions for nonresidential development.
(1) 
The nonresidential portion of a mixed-use inclusionary or market-rate development shall be subject to the 2.5% development fee, unless otherwise exempted below.
(2) 
The 2.5% fee shall not apply to an increase in equalized assessed value resulting from alterations, change in use within existing footprint, reconstruction, renovations and repairs.
(3) 
The 2.5% fee shall not apply to developers of any not-for-profit use; federal, state and municipal government uses; churches and other places of worship; and public schools.
(4) 
Nonresidential developments shall be exempt from the payment of nonresidential development fees in accordance with the exemptions required pursuant to P.L. 2008, c. 46, as specified in the Form N-RDF, "State of New Jersey Non-Residential Development Certification/Exemption" form. Any exemption claimed by a developer shall be substantiated by that developer.
(5) 
A developer of a nonresidential development exempted from the nonresidential development fee pursuant to P.L. 2008, c. 46 shall be subject to it at such time the basis for the exemption no longer applies, and shall make the payment of the nonresidential development fee, in that event, within three years after that event or after the issuance of the final certificate of occupancy of the nonresidential development, whichever is later.
(6) 
If a property which was exempted from the collection of a nonresidential development fee thereafter ceases to be exempt from property taxation, the owner of the property shall remit the fees required pursuant to this section within 45 days of the termination of the property tax exemption. Unpaid nonresidential development fees under these circumstances may be enforceable by the Township as a lien against the real property of the owner.
A. 
Upon the granting of a preliminary, final or other applicable approval for a development, the applicable approving authority shall direct its staff to notify the Construction Official responsible for the issuance of a building permit.
B. 
For nonresidential developments only, the developer shall also be provided with a copy of Form N-RDF, "State of New Jersey Non-Residential Development Certification/Exemption," to be completed as per the instructions provided. The developer of a nonresidential development shall complete Form N-RDF as per the instructions provided. The Construction Official shall verify the information submitted by the nonresidential developer as per the instructions provided in Form N-RDF. The Tax Assessor shall verify exemptions and prepare estimated and final assessments as per the instructions provided in Form N-RDF.
C. 
The Construction Official responsible for the issuance of a building permit shall notify the local Tax Assessor of the issuance of the first building permit for a development which is subject to a development fee.
D. 
Within 90 days of receipt of that notice, the Municipal Tax Assessor, based on the plans filed, shall provide an estimate of the equalized assessed value of the development.
E. 
The Construction Official responsible for the issuance of a final certificate of occupancy notifies the local Assessor of any and all requests for the scheduling of a final inspection on property which is subject to a development fee.
F. 
Within 10 business days of a request for the scheduling of a final inspection, the Municipal Assessor shall confirm or modify the previously estimated equalized assessed value of the improvements of the development; calculate the development fee; and thereafter notify the developer of the amount of the fee.
G. 
Should the Township fail to determine or notify the developer of the amount of the development fee within 10 business days of the request for final inspection, the developer may estimate the amount due and pay that estimated amount consistent with the dispute process set forth in Subsection b of § 37 of P.L. 2008, c. 46 (N.J.S.A. 40:55D-8.6).
H. 
Fifty percent of the development fee shall be collected at the time of issuance of the building permit. The remaining portion shall be collected at the issuance of the certificate of occupancy. The developer shall be responsible for paying the difference between the fee calculated at the time of issuance of the building permit and that determined at issuance of the certificate of occupancy.
I. 
Appeal of development fees.
(1) 
A developer may challenge residential development fees imposed by filing a challenge with the County Board of Taxation. Pending a review and determination by the Board, collected fees shall be placed in an interest-bearing escrow account by the Township. Appeals from a determination of the Board may be made to the tax court in accordance with the provisions of the State Tax Uniform Procedure Law, N.J.S.A. 54:48-1 et seq., within 90 days after the date of such determination. Interest earned on amounts escrowed shall be credited to the prevailing party.
(2) 
A developer may challenge nonresidential development fees imposed by filing a challenge with the Director of the Division of Taxation. Pending a review and determination by the Director, which shall be made within 45 days of receipt of the challenge, collected fees shall be placed in an interest-bearing escrow account by Township. Appeals from a determination of the Director may be made to the tax court in accordance with the provisions of the State Tax Uniform Procedure Law, N.J.S.A. 54:48-1 et seq., within 90 days after the date of such determination. Interest earned on amounts escrowed shall be credited to the prevailing party.
A. 
There is hereby created a separate, interest-bearing affordable housing trust fund to be maintained by the Chief Financial Officer for the purpose of depositing development fees collected from residential and nonresidential developers and proceeds from the sale of units with extinguished controls.
B. 
The following additional funds shall be deposited in the affordable housing trust fund and shall at all times be identifiable by source and amount:
(1) 
Payments in lieu of on-site construction of affordable units;
(2) 
Developer-contributed funds to make 10% of the adaptable entrances in a townhouse or other multistory attached development accessible;
(3) 
Rental income from municipally operated units;
(4) 
Repayments from affordable housing program loans;
(5) 
Recapture funds;
(6) 
Proceeds from the sale of affordable units; and
(7) 
Any other funds collected in connection with the Township's affordable housing program.
C. 
In the event of a failure by the Township of Marlboro to comply with trust fund monitoring and reporting requirements or to submit accurate monitoring reports; or a failure to comply with the conditions of the judgment of compliance or a revocation of the judgment of compliance; or a failure to implement the approved spending plan and to expend funds within the applicable required time period as set forth in In re Tp. of Monroe, 442 N.J. Super. 565 (Law Div. 2015) (aff'd 442 N.J. Super. 563); or the expenditure of funds on activities not approved by the Court; or for other good cause demonstrating the unapproved use(s) of funds, the Court may authorize the State of New Jersey, Department of Community Affairs, Division of Local Government Services (LGS), to direct the manner in which the funds in the Affordable Housing Trust Fund shall be expended, provided that all such funds shall, to the extent practicable, be utilized for affordable housing programs within the Township of Marlboro, or, if not practicable, then within the county or the housing region.
(1) 
Any party may bring a motion before the Superior Court presenting evidence of such condition(s), and the Court may, after considering the evidence and providing the municipality a reasonable opportunity to respond and/or to remedy the noncompliant condition(s), and upon a finding of continuing and deliberate noncompliance, determine to authorize LGS to direct the expenditure of funds in the Trust Fund. The Court may also impose such other remedies as may be reasonable and appropriate to the circumstances.
D. 
Interest accrued in the Affordable Housing Trust Fund shall only be used to fund eligible affordable housing activities approved by the Court.
A. 
The expenditure of all funds shall conform to a spending plan approved by the court. Funds deposited in the housing trust fund may be used for any activity approved by the court to address the Township's fair share obligation and may be set up as a grant or revolving loan program. Such activities include, but are not limited to, preservation or purchase of housing for the purpose of maintaining or implementing affordability controls, rehabilitation, new construction of affordable housing units and related costs, accessory apartment, market to affordable, or regional housing partnership programs, conversion of existing nonresidential buildings to create new affordable units, green building strategies designed to be cost saving and in accordance with accepted national or state standards, purchase of land for affordable housing, improvement of land to be used for affordable housing, extensions or improvements of roads and infrastructure to affordable housing sites, financial assistance designed to increase affordability, administration necessary for implementation of the Housing Element and Fair Share Plan, or any other activity as permitted pursuant to N.J.A.C. 5:93-8 and specified in the approved spending plan.
B. 
Development fee revenues shall not be expended to reimburse the Township for past housing activities.
C. 
At least 30% of all development fees collected and interest earned shall be used to provide affordability assistance to low- and moderate-income households in affordable units included in the municipal Fair Share Plan. One-third of the affordability assistance portion of development fees collected shall be used to provide affordability assistance to those households earning 30% or less of median income by region.
(1) 
Affordability assistance programs may include down payment assistance, security deposit assistance, low-interest loans, rental assistance, assistance with homeowners' association or condominium fees and special assessments, and assistance with emergency repairs.
(2) 
Affordability assistance to households earning 30% or less of median income may include buying down the cost of low- or moderate-income units in the third-round Municipal Fair Share Plan to make them affordable to households earning 30% or less of median income. The use of development fees in this manner shall entitle the Township to bonus credits pursuant to N.J.A.C. 5:94-4.22.
(3) 
Payments in lieu of constructing affordable units on site and funds from the sale of units with extinguished controls shall be exempt from the affordability assistance requirement.
D. 
The Township may contract with a private or public entity to administer any part of its Housing Element and Fair Share Plan, including the requirement for affordability assistance, in accordance with N.J.A.C. 5:94-7.
E. 
No more than 20% of all revenues collected from development fees may be expended on administration, including, but not limited to, salaries and benefits for municipal employees or consultant fees necessary to develop or implement a new construction program, a Housing Element and Fair Share Plan, and/or an affirmative marketing program. In the case of a rehabilitation program, no more than 20% of the revenues collected from development fees shall be expended for such administrative expenses. Administrative funds may be used for income qualification of households, monitoring the turnover of sale and rental units, and compliance with the monitoring requirements for the affordable housing in in compliance with the Housing Element and Fair Share Plan. Legal or other fees related to litigation opposing affordable housing sites or objecting to the Council's regulations and/or action are not eligible uses of the affordable housing trust fund.
On the first anniversary of the order of the Superior Court in the matter of in Re: In the Matter of the Application of the Township of Marlboro for a Declaratory Judgement, Docket No. MON-L-2121-15, and every anniversary thereafter through the end of the repose period, the Township shall provide annual reporting of trust fund activity to the New Jersey Department of Community Affairs ("DCA"), COAH, or Local Government Services ("LGS"), or other entity designated by the State of New Jersey, with a copy provided to Fair Share Housing Center and posted on the municipal website, using forms developed for this purpose by the DCA, COAH, or LGS. This reporting shall include an accounting of all housing trust fund activity, including the collection of development fees from residential and nonresidential developers, payments in lieu of constructing affordable units on site, funds from the sale of units with extinguished controls, barrier-free escrow funds, rental income, repayments from affordable housing program loans, and any other funds collected in connection with the Township's housing program, as well as to the expenditure of revenues and implementation of the plan approved by the court.
The ability for the Township to impose, collect and expend development fees shall expire with its judgment of compliance unless the Township has filed an adopted Housing Element and Fair Share Plan with the court or other appropriate jurisdiction, has filed a declaratory judgment action and has received court approval of its development fee ordinance. If the Township fails to renew its ability to impose and collect development fees prior to the expiration of its judgment of compliance and repose, it may be subject to forfeiture of any or all funds remaining within its municipal trust fund. Any funds so forfeited shall be deposited into the New Jersey Affordable Housing Trust Fund established pursuant to Section 20 of P.L. 1985, c. 222 (N.J.S.A. 52:27D-320). The Township shall not impose a residential development fee on a development that receives preliminary or final site plan approval after the expiration of its judgment of compliance and repose, nor shall the Township retroactively impose a development fee on such a development. The Township shall not expend development fees after the expiration of its substantive certification or judgment of compliance and repose.