[HISTORY: Adopted by the Township Council of the Township
of Clark 9-18-2017 by Ord. No.
17-14.[1] Amendments noted where applicable.]
[1]
Editor’s Note: This ordinance also repealed former Ch.
66, Affordable Housing, adopted 5-15-2017 by Ord. No. 17-07.
A.Â
This chapter is intended to assure that low- and moderate-income
units ("affordable units") are created with controls on affordability
over time and that low- and moderate-income households shall occupy
these units. This chapter shall apply except where inconsistent with
applicable law.
B.Â
The Clark Township Planning Board has adopted a Housing Element and
Fair Share Plan pursuant to the Municipal Land Use Law at N.J.S.A.
40:5513-1 et seq. The Fair Share Plan has been endorsed by the governing
body. The Fair Share Plan describes the ways Clark Township shall
address its fair share for low- and moderate-income housing as determined
by the Court and documented in the Housing Element.
C.Â
This chapter implements and incorporates the Fair Share Plan and
addresses the requirements of N.J.A.C. 5:93-1 et seq., as may be amended
and supplemented.
D.Â
Reporting; required action.
(1)Â
On the first anniversary of the execution of this agreement, and
every anniversary thereafter through the end of this agreement, Clark
shall provide annual reporting of trust fund activity to the New Jersey
Department of Community Affairs, Council on Affordable Housing, or
Local Government Services, or other entity designated by the State
of New Jersey. The reporting shall include an accounting of all housing
trust fund activity, including the source and amount of funds collected
and the amount and purpose for which any funds have been expended.
(2)Â
On the first anniversary of the execution of this agreement, and
every anniversary thereafter through the end of this agreement, the
Township shall provide annual reporting of the status of all affordable
housing activity within the municipality through posting on the municipal
website with a copy of such posting 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 Special Master
and FSHC.
(3)Â
The Fair Housing Act includes two provisions regarding action to
be taken by the Township during the ten-year period of protection
provided in this agreement. The Township shall comply with those provisions
as follows:
(a)Â
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 a copy provided to Fair Share
Housing Center, a status report as to its implementation of its plan
and an analysis of whether any unbuilt sites or unfulfilled mechanisms
continue to present a realistic opportunity and whether any mechanisms
to meet unmet need should be revised or supplemented. Such posting
shall invite any interested party to submit comments to the municipality,
with a copy to Fair Share Housing Center, regarding whether any sites
no longer present a realistic opportunity and should be replaced and
whether any mechanisms to meet unmet need should be revised or supplemented.
Any interested party may by motion request a hearing before the court
regarding these issues.
(b)Â
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 this agreement, and every third year thereafter, the Township shall
post on its municipal website, with a copy 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 municipality and Fair Share Housing Center on the issue of
whether the municipality has complied with its very-low-income housing
obligation under the terms of this settlement.
E.Â
ACCESSORY APARTMENT
ACT
ADAPTABLE
ADMINISTRATIVE AGENT
AFFIRMATIVE MARKETING
AFFORDABILITY AVERAGE
AFFORDABLE
AFFORDABLE DEVELOPMENT
AFFORDABLE HOUSING DEVELOPMENT
AFFORDABLE HOUSING PROGRAM(S)
AFFORDABLE UNIT
AGE-RESTRICTED UNIT
(1)Â
(2)Â
(3)Â
AGENCY
ALTERNATIVE LIVING ARRANGEMENT
ASSISTED LIVING RESIDENCE
CERTIFIED HOUSEHOLD
COURT OF COMPETENT JURISDICTION
DCA
DEFICIENT HOUSING UNIT
DEVELOPER
DEVELOPMENT
INCLUSIONARY DEVELOPMENT
LOW-INCOME HOUSEHOLD
LOW-INCOME UNIT
MAJOR SYSTEM
MARKET-RATE UNITS
MEDIAN INCOME
MODERATE-INCOME HOUSEHOLD
MODERATE-INCOME UNIT
NONEXEMPT SALE
RANDOM SELECTION PROCESS
REGIONAL ASSET LIMIT
REHABILITATION
RENT
RESTRICTED UNIT
UHAC
VERY-LOW-INCOME HOUSEHOLD
VERY-LOW-INCOME UNIT
WEATHERIZATION
The following terms, when used in this chapter, shall have the meanings
given in this section:
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 accessory 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.
The Fair Housing Act of 1985, P.L. 1985, c. 222 (N.J.S.A.
52:27D-301 et seq.).
Constructed in compliance with the technical design standards
of the Barrier Free Subcode, N.J.A.C. 5:23-7.
The entity responsible for the administration of affordable
units in accordance with this chapter, N.J.A.C. 5:93 and N.J.A.C.
5:80-26.1 et seq.
A regional marketing strategy designed to attract buyers
and/or renters of affordable units pursuant to N.J.A.C. 5:80-26.15.
The average percentage of median income at which restricted
units in an affordable housing development are affordable to low-
and moderate-income households.
A sales price or rent within the means of a low- or moderate-income
household as defined in N.J.A.C. 5:93-7.4; in the case of an ownership
unit, that the sales price for the unit conforms to the standards
set forth in N.J.A.C. 5:80-26.6, as may be amended and supplemented,
and, in the case of a rental unit, that the rent for the unit conforms
to the standards set forth in N.J.A.C. 5:80-26.12, as may be amended
and supplemented.
A housing development all or a portion of which consists
of restricted units.
A development included in the Housing Element and Fair Share
Plan, and includes, but is not limited to, an inclusionary development,
a municipal construction project or a one-hundred-percent affordable
development.
Any mechanism in a municipal Fair Share Plan prepared or
implemented to address a municipality's fair share obligation.
A housing unit proposed or created pursuant to the Act, and
approved for crediting by the Court, and/or funded through an affordable
housing trust fund.
A housing unit designed to meet the needs of, and exclusively
for, the residents of an age-restricted segment of the population
such that:
All the residents of the development where the unit is situated
are 62 years or older; or
At least 80% of the units are occupied by one person that is
55 years or older; or
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.
The New Jersey Housing and Mortgage Finance Agency established
by P.L. 1983, c. 530 (N.J.S.A. 55:14K-1 et seq.).
A structure in which households live in distinct bedrooms,
yet share kitchen and plumbing facilities, central heat and common
areas. Alternative living arrangement includes, but is not limited
to: transitional facilities for the homeless, Class A, B, C, D, and
E boarding homes as regulated by the 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.
A facility licensed by the New Jersey Department of Health
and Senior Services to provide apartment-style housing and congregate
dining and to assure that assisted living services are available when
needed for four or more adult persons unrelated to the proprietor
and that offers units containing, at a minimum, one unfurnished room,
a private bathroom, a kitchenette and a lockable door on the unit
entrance.
A household that has been certified by an administrative
agent as a low-income household or moderate-income household.
The approving authority that was established under the New
Jersey Fair Housing Act (N.J.S.A. 52:27D-301 et seq.).
The State of New Jersey Department of Community Affairs.
A housing unit with health and safety code violations that
require the repair or replacement of a major system. A major system
includes components of a building as provided in the definition of
"major system" below.
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.
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.
A development containing both affordable units and market-rate
units. This term includes, but is not necessarily limited to, new
construction, the conversion of a nonresidential structure to residential
and the creation of new affordable units through the reconstruction
of a vacant residential structure.
A household with a total gross annual household income equal
to 50% or less of the regional median household income by household
size.
A restricted unit that is affordable to a low-income household.
The primary structural, mechanical, plumbing, electrical,
fire protection, or occupant service components of a building, which
include, but are not limited to, weatherization, roofing, plumbing
(including wells), heating, electricity, sanitary plumbing (including
septic systems), lead paint abatement or load-bearing structural systems.
Housing not restricted to low- and moderate-income households
that may sell or rent at any price.
The median income by household size for the applicable housing
region.
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.
A restricted unit that is affordable to a moderate-income
household.
Any sale or transfer of ownership other than the transfer
of ownership between husband and wife; the transfer of ownership between
former spouses ordered as a result of a judicial decree of divorce
or judicial separation, but not including sales to third parties;
the transfer of ownership between family members as a result of inheritance;
the transfer of ownership through an executor's deed to a Class A
beneficiary and the transfer of ownership by court order.
A process by which currently income-eligible households are
selected for placement in affordable housing units such that no preference
is given to one applicant over another except for purposes of matching
household income and size with an appropriately priced and sized affordable
unit (e.g., by lottery).
The maximum housing value in each housing region affordable
to a four-person household with an income at 80% of the regional median
as defined by adopted Regional Income Limits published annually.
The repair, renovation, alteration or reconstruction of any
building or structure, pursuant to the Rehabilitation Subcode, N.J.A.C.
5:23-6.
The gross monthly cost of a rental unit to the tenant, including
the rent paid to the landlord, as well as an allowance for tenant-paid
utilities computed in accordance with allowances published by DCA
for its Section 8 program. In assisted living residences, rent does
not include charges for food and services.
A dwelling unit, whether a rental unit or ownership unit,
that is subject to the affordability controls of N.J.A.C. 5:80-26.1,
as may be amended and supplemented, but does not include a market-rate
unit financed under UIETORP or MONT.
The Uniform Housing Affordability Controls set forth in N.J.A.C.
5:80-26.1 et seq.
A household with a total gross annual household income equal
to 30% or less of the regional median household income by household
size.
A restricted unit that is affordable to a very-low-income
household.
Building insulation (for attic, exterior walls and crawl
space), siding to improve energy efficiency, replacement storm windows,
replacement storm doors, replacement windows and replacement doors,
and is considered a major system for rehabilitation.
The provisions of this chapter shall apply to all affordable
housing developments and affordable housing units that currently exist
and that are proposed to be created within the Township of Clark pursuant
to the Township's most recently adopted Housing Element and Fair Share
Plan.
The Township of Clark has determined that it will use the following
mechanisms to satisfy its affordable housing obligations:
A.Â
A rehabilitation program.
(1)Â
The Township of Clark's rehabilitation program shall be designed
to renovate deficient housing units occupied by low- and moderate-income
households such that, after rehabilitation, these units will comply
with the New Jersey State Housing Code pursuant to N.J.A.C. 5:28,
and the Rehabilitation Subcode, N.J.A.C. 5:23-6. The program is also
guided by N.J.A.C. 5:93-5.2 and is subject to all applicable laws,
regulations, ordinances and codes of the New Jersey Department of
Community Affairs (DCA) and the Township of Clark. The Township program
may include units rehabilitated under the Union County Home Improvement
Program.
(2)Â
Both owner-occupied and renter-occupied units shall be eligible for
rehabilitation funds.
(3)Â
All rehabilitated units shall remain affordable to low- and moderate-income
households for a period of 10 years (the control period). For owner-occupied
units, the control period will be enforced with a lien, and for renter-occupied
units the control period will be enforced with a deed restriction.
(4)Â
The Township of Clark shall dedicate an average of at least $10,000
for each unit to be rehabilitated through this program, reflecting
the minimum average hard cost of rehabilitation for each unit.
(5)Â
The Township of Clark shall adopt a resolution committing to fund
any shortfall in the rehabilitation programs for the Township of Clark.
(6)Â
The Township of Clark shall designate, subject to the approval of
a Court of Competent Jurisdiction, one or more administrative agents
to administer the rehabilitation program in accordance with N.J.A.C.
5:93-5.2. The administrative agent(s) shall provide a rehabilitation
manual for the owner-occupancy rehabilitation program and for the
rental-occupancy rehabilitation program to be adopted by resolution
of the governing body and subject to approval of the Court. The rehabilitation
manual shall be available for public inspection in the office of the
Municipal Clerk and in the office(s) of the administrative agent(s).
(7)Â
Units in a rehabilitation program shall be exempt from Uniform Housing
Affordability Controls (UHAC), but shall be administered in accordance
with the following:
(a)Â
If a unit is vacant, upon initial rental subsequent to rehabilitation,
or if a renter-occupied unit is re-rented prior to the end of controls
on affordability, the deed restriction shall require the unit to be
rented to a low- or moderate-income household at an affordable rent
and affirmatively marketed pursuant to UHAC.
(b)Â
If a unit is renter-occupied, upon completion of the rehabilitation,
the maximum rate of rent shall be the lesser of the current rent or
the maximum permitted rent pursuant to UHAC.
(c)Â
Rents in rehabilitated rental units may increase annually which
will be updated regularly, either by DCA or, in its absence, via the
formula approved by the Court of Jurisdiction and attached as an appendix
to the Township's Housing Rehabilitation Policies and Procedures Manual.
(d)Â
Applicant and/or tenant households shall be certified as income-eligible
in accordance with UHAC, except that households in owner-occupied
units shall be exempt from the regional asset limit.
B.Â
Alternative living arrangements. The administration of an alternative
living arrangements shall be in compliance with N.J.A.C. 5:93-5.8
and UHAC, with the following exceptions:
(1)Â
Affirmative marketing (N.J.A.C. 5:80-26.15); provided, however, that
the units or bedrooms may be affirmatively marketed by the provider
in accordance with an alternative plan approved by the Court;
(2)Â
Affordability average and bedroom distribution (N.J.A.C. 5:80-26.3).
(3)Â
With the exception of units established with capital funding through
a twenty-year operating contract with the Department of Human Services,
Division of Developmental Disabilities, alternative living arrangements
shall have at least thirty-year controls on affordability in accordance
with UHAC, unless an alternative commitment is approved by the court.
(4)Â
The service provider for the alternative living arrangement shall
act as the administrative agent for the purposes of administering
the affirmative marketing and affordability requirements for the alternative
living arrangement.
The following general guidelines apply to all newly constructed
developments that contain very low-, low- and moderate-income housing
units, including any currently unanticipated future developments that
will provide low- and moderate-income housing units.
A.Â
Low/moderate split and bedroom distribution of affordable housing
units:
(1)Â
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.
At least 13% of all restricted rental units 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.
(2)Â
In each affordable development, at least 50% of the restricted units
within each bedroom distribution shall be low-income units.
(3)Â
Affordable developments that are not age-restricted shall be structured
in conjunction with realistic market demands such that:
(a)Â
The combined number of efficiency and one-bedroom units shall
be no greater than 20% of the total low- and moderate-income units;
(b)Â
At least 30% of all low- and moderate-income units shall be
two-bedroom units;
(c)Â
At least 20% of all low- and moderate-income units shall be
three-bedroom units; and
(d)Â
The remaining units may be allocated among two- and three-bedroom
units at the discretion of the developer.
(4)Â
Affordable developments that are age-restricted shall be structured
such that the number of bedrooms shall equal the number of age-restricted
low- and moderate-income units within the inclusionary development.
The standard may be met by having all one-bedroom units or by having
a two-bedroom unit for each efficiency unit.
B.Â
Accessibility requirements:
(1)Â
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)Â
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)Â
An adaptable toilet and bathing facility on the first floor;
(b)Â
An adaptable kitchen on the first floor;
(c)Â
An interior accessible route of travel on the first floor;
(d)Â
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;
(e)Â
If not all of the foregoing requirements in Subsection B(2)(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(2)(a) through (d) directly above have been satisfied, then an interior accessible route of travel shall not be required between stories within an individual unit;
(f)Â
An accessible entranceway as set forth at P.L. 2005, c. 350
(N.J.S.A. 52:27D-311.a et seq.) and the Barrier Free Subcode, N.J.A.C.
5:23-7, or evidence that the Township of Clark has collected funds
from the developer sufficient to make 10% of the adaptable entrances
in the development accessible:
[1]Â
Where a unit has been constructed with an adaptable entrance,
upon the request of a disabled person who is purchasing or will reside
in the dwelling unit, an accessible entrance shall be installed.
[2]Â
To this end, the builder of restricted units shall deposit funds
within the Township of Clark's affordable housing trust fund sufficient
to install accessible entrances in 10% of the affordable units that
have been constructed with adaptable entrances.
[3]Â
The funds deposited under Subsection B(2)(f)[2] above shall be used by the Township of Clark for the sole purpose of making the adaptable entrance of any 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]Â
The developer of the restricted units shall submit a design
plan and cost estimate for the conversion from adaptable to accessible
entrances to the Construction Code Official of the Township of Clark.
[5]Â
Once the Construction Code 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 of Clark's affordable housing trust
fund in care of the Municipal Treasurer who shall ensure that the
funds are deposited into the affordable housing trust fund and appropriately
earmarked.
C.Â
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 Design.
(1)Â
In inclusionary developments, to the extent possible, very-low-,
low- and moderate-income units shall be integrated with the market
units.
(2)Â
In inclusionary developments, very-low-, low-, and moderate-income
units shall have access to all of the same common elements and facilities
as the market units.
D.Â
Maximum rents and sales prices.
(1)Â
In establishing rents and sales prices of affordable housing units,
the administrative agent shall follow the procedures set forth in
UHAC, utilizing the regional income limits established by COAH. If
COAH is not functioning, Clark will utilize the procedures approved
by the Court.
(2)Â
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 low- and
moderate-income units shall be affordable to households earning no
more than 52% of median income.
(3)Â
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. At least 13% of all low- and moderate-income
rental units shall be affordable to households earning no more than
30% of regional median income, 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
by household size, which very-low-income units shall be part of the
low-income requirement. The very-low-income units shall be distributed
as evenly as possible among the bedroom types.
(4)Â
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 by household size, which very-low-income
units shall be part of the low-income requirement. The very-low-income
units shall be distributed as evenly as possible among the bedroom
types.
(5)Â
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 prices for each
bedroom type, and low-income ownership units must be available for
at least two different prices for each bedroom type.
(6)Â
In determining the initial sales prices and rent levels for restricted
units other than age-restricted units (including assisted living units),
the following standards shall be used:
(a)Â
A studio shall be affordable to a one-person household;
(b)Â
A one-bedroom unit shall be affordable to a one-and-one-half-person
household;
(c)Â
A two-bedroom unit shall be affordable to a three-person household;
(d)Â
A three-bedroom unit shall be affordable to a four-and-one-half-person
household; and
(e)Â
A four-bedroom unit shall be affordable to a six-person household.
(7)Â
In determining the initial sales prices and rent levels for age-restricted
(including assisted living) units, the following standards shall be
used:
(8)Â
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.
(9)Â
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
household size 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.
(10)Â
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.
(11)Â
The rent of low- and moderate-income units may be increased annually
based on the percentage increase in the Housing Consumer Price Index
for the northeast urban area. This increase shall not exceed 9% in
any one year. Rent increases for units constructed pursuant to low-income
housing tax credit regulations shall be indexed pursuant to the regulations
governing low-income housing tax credits.
(12)Â
Utilities. Tenant-paid utilities that are included in the utility
allowance shall be so stated in the lease and shall be consistent
with the utility allowance approved by HUD for its Section 8 program.
Affordable units in an inclusionary development shall utilize the
same type of heating source as the market units.
E.Â
Phasing requirements. In inclusionary developments the following
schedule shall be followed:
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%
|
F.Â
Affordable
housing set-aside requirements.
[Added 9-18-2023 by Ord. No. 23-26]
(1)Â
In the R-B Multiple-Family Residential District, the R-SH Age-Restricted/Senior
Housing Overlay District, the R-TH Residential Townhouse District,
and the R-B-16 Multiple-Family Residential District with an affordable
housing set-aside of 20% (the "20% Districts"), developments creating
fewer than five residential units shall pay the residential development
fee to the Township of Clark Affordable Housing Trust Fund.
(2)Â
In the 20% Districts, developments creating five residential units
shall provide one affordable housing unit.
(3)Â
In the 20% Districts, developments creating six or more units shall
provide a minimum of one affordable housing unit, and:
(a)Â
Where the set-aside creates a fraction of a unit less than 0.5,
the developer shall have the option to either:
(b)Â
When applying the set-aside creates a fraction of a unit greater
than 0.5, the developer shall provide an affordable housing unit.
(c)Â
All whole numbers created by the set-aside shall be provided
as affordable units.
(4)Â
In the DTV Downtown Village District with an affordable housing set-aside
of 15% (the "15% District"), developments creating fewer than five
residential units shall pay the residential development fee to the
Township of Clark Affordable Housing Trust Fund.
(5)Â
In the 15% District, developments creating five or six residential
units shall provide one affordable housing unit.
(6)Â
In the 15% District, developments creating seven or more residential
units shall provide a minimum of one affordable housing unit, and:
(a)Â
Where the set-aside creates a fraction of a unit less than 0.5,
the developer shall have the option to either:
(b)Â
When applying the set-aside creates a fraction of a unit greater
than 0.5, the developer shall provide an affordable housing unit.
(c)Â
All whole numbers created by the set-aside shall provide be
provided as affordable units.
(7)Â
If the Township of Clark enacts an ordinance creating a district
with an affordable housing set-aside other than 20%, 16% or 15%, that
ordinance will address the method of calculating partial affordable
units. Additionally, if a redevelopment plan requires a set-aside,
the redevelopment plan will address the appropriate set-aside percentage.
A.Â
The Township of Clark shall adopt by resolution an affirmative marketing
plan, subject to approval of a Court of Competent Jurisdiction, compliant
with N.J.A.C. 5:80-26.15, as may be amended and supplemented.
B.Â
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 also intended to target those potentially eligible
persons who are least likely to apply for affordable units in that
region. It is a continuing program that directs all marketing activities
toward Housing Region 2 and covers the period of deed restriction.
The affirmative marketing plan shall provide a regional preference
for all households that live and/or work in Housing Region 2 comprised
of Essex, Morris, Union and Warren counties.
C.Â
The administrative agent designated by the Township of Clark shall
assure the affirmative marketing of all affordable units consistent
with the affirmative marketing plan for the municipality.
D.Â
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.
Additionally, the administrative agent shall ensure that the following
organizations are specifically notified of the availability of affordable
units in the Township of Clark and provided with application forms:
FSHC (510 Park Blvd, Cherry Hill, NJ); the Latino Action Network
(PO Box 943, Freehold, NJ 07728): East Orange NAACP (PO Box 1127,
East Orange, NJ 07019); Newark NAACP (PO Box 1262, Newark, NJ 07101);
Morris Co. NAACP (PO Box 2256, Morristown, NJ 07962); Elizabeth NAACP
(PD Box 6732, Elizabeth, NJ 07206), and the Supportive Housing Association,
15 Alden St # 14, Cranford, NJ 07016
E.Â
The affirmative marketing process for available affordable units
shall begin at least four months prior to the expected date of occupancy.
F.Â
The costs of advertising and affirmative marketing of the affordable
units shall be the responsibility of the developer, sponsor or owner,
unless otherwise determined or agreed to by the Township of Clark.
A.Â
In referring certified households to specific restricted units, to
the extent feasible, and without causing an undue delay in occupying
the unit, the administrative agent shall strive to:
B.Â
Additional provisions related to occupancy standards (if any) shall
be provided in the municipal Operating Manual.
A.Â
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 until the Township of Clark elects to release the
unit from such requirements; however, and prior to such an election,
a restricted ownership unit must remain subject to the requirements
of N.J.A.C. 5:80-26.1, as may be amended and supplemented, for at
least 30 years.
B.Â
The affordability control period for a restricted ownership unit
shall commence on the date the initial certified household takes title
to the unit.
C.Â
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.
D.Â
At the time of the first sale of the unit, the 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 requirements of 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.Â
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.
F.Â
A restricted ownership unit shall be required to obtain a continuing
certificate of occupancy or a certified statement from the Construction
Code Official stating that the unit meets all code standards upon
the first transfer of title that follows the expiration of the applicable
minimum control period provided under N.J.A.C. 5:80-26.5(a), as may
be amended and supplemented.
Price restrictions for restricted ownership units shall be in
accordance with N.J.A.C. 5:80-26.1 et seq., as may be amended and
supplemented, including:
A.Â
The initial purchase price for a restricted ownership unit shall
be approved by the administrative agent.
B.Â
The administrative agent shall approve all resale prices, in writing
and in advance of the resale, to assure compliance with the foregoing
standards.
C.Â
The method used to determine the condominium association fee amounts
and special assessments shall be indistinguishable between the low-
and moderate-income unit owners and the market unit owners.
D.Â
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. Eligible capital improvements shall be those
that render the unit suitable for a larger household or the addition
of a bathroom.
A.Â
Buyer income eligibility for restricted ownership units shall be
in accordance with N.J.A.C. 5:80-26.1 et seq., 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.Â
Notwithstanding the foregoing, however, the administrative agent
may, upon approval by the Township 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.Â
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 certified monthly income.
D.Â
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.
A.Â
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.Â
With the exception of first purchase money mortgages, during a control
period 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 that unit, as such price
is determined by the administrative agent in accordance with N.J.A.C.
5:80-26.6(b).
A.Â
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 add 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.Â
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.Â
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 until the Township of Clark elects to release the
unit from such requirements pursuant to action taken in compliance
with N.J.A.C. 5:80-26.1 et seq., as may be amended and supplemented,
and prior to such an election, a restricted rental unit must remain
subject to the requirements of N.J.A.C. 5:80-26.1 et seq., as may
be amended and supplemented, for at least 30 years.
B.Â
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 Union. 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.Â
A restricted rental unit shall remain subject to the affordability
controls of this chapter, despite the occurrence of any of the following
events:
A.Â
A written lease shall be required for all restricted rental units,
except for units in an assisted living residence, 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.Â
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.Â
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.Â
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 in the
development are restricted affordable rental units in accordance with
this chapter.
A.Â
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)Â
Very-low-income rental units shall be reserved for households with
a gross household income less than or equal to 30% of the regional
median household income by household size.
(2)Â
Low-income rental units shall be reserved for households with a gross
household income less than or equal to 50% of the regional median
household income by household size.
(3)Â
Moderate-income rental units shall be reserved for households with
a gross household income less than 80% of the regional median household
income by household size.
B.Â
The administrative agent shall certify a household as eligible for
a restricted rental unit when the household is a very-low-income,
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)Â
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)Â
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)Â
The household is currently in substandard or overcrowded living conditions;
(4)Â
The household documents the existence of assets with which the household
proposes to supplement the rent payments; or
(5)Â
The household documents reliable 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.
A.Â
The position of Municipal Housing Liaison (MHL) for the Township
of Clark is established by this chapter. The Township Council of the
Township of Clark shall make the actual appointment of the MHL by
means of a resolution.
(1)Â
The MHL must be either a full-time or part-time employee of the Township
of Clark.
(2)Â
The person appointed as the MHL and the qualifications of such person
shall be approved by the Court.
(3)Â
The MHL must meet all requirements for qualifications, including
initial and periodic training.
(4)Â
The Municipal Housing Liaison shall be responsible for oversight
and administration of the affordable housing program for the Township
of Clark, including the following responsibilities which may not be
contracted out to the administrative agent:
(a)Â
Serving as the municipality's primary point of contact for all
inquiries from the state, affordable housing providers, administrative
agents and interested households;
(b)Â
Overseeing the implementation of the Affirmative Marketing Plan
and affordability controls by the administrative agent(s);
(c)Â
When applicable, supervising any contracting administrative
agent;
(d)Â
Monitoring the status of all restricted units in the Township
of Clark's Fair Share Plan;
(e)Â
Compiling, verifying and submitting annual reports as required
by this chapter;
(f)Â
Coordinating meetings with affordable housing providers and
administrative agents, as applicable; and
(g)Â
Attending continuing education opportunities on affordability
controls, compliance monitoring and affirmative marketing as offered.
B.Â
The Township of Clark shall designate by resolution of the Township
Council, subject to the approval of the Court, one or more administrative
agents to administer and affirmatively market the affordable units
constructed in Clark in accordance with this ordinance. The Municipal
Housing Liaison shall supervise the work of the administrative agent(s).
C.Â
An operating manual shall be provided by the administrative agent(s)
to be adopted by resolution of the governing body and subject to the
approval of the Court. The operating manuals shall be available for
public inspection in the office of the Municipal Clerk and in the
office(s) of the administrative agent(s).
D.Â
Duties and responsibilities of the administrative agents.
(1)Â
The administrative agent(s) shall perform the duties and responsibilities
of an administrative agent as are set forth in UHAC and which are
described in full detail in the project or program operating manual,
including those set forth in N.J.A.C. 5:80-26.14, 16 and 18 thereof,
which includes:
(a)Â
Attending continuing education opportunities on affordability
controls, compliance monitoring, and affirmative marketing as offered
or approved by COAH or the Affordable Housing Professionals of New
Jersey (AHPNJ);
(b)Â
Affirmative marketing;
(c)Â
Household certification;
(d)Â
Affordability controls;
(e)Â
Records retention;
(f)Â
Resale and rerental;
(g)Â
Processing requests from unit owners;
(h)Â
Enforcement, though the ultimate responsibility for retaining
controls on the units rests with the municipality; and
(i)Â
Preparing monitoring reports for submission to the Municipal
Housing Liaison in time to meet the deadlines for reporting set forth
in this ordinance.
(2)Â
The administrative agent shall have authority to take all actions
necessary and appropriate to carry out its responsibilities hereunder.
(3)Â
The fees and costs of the administrative agent(s) shall be paid by
the owners of the affordable units for which the services of the administrative
agent are required. The administrative agent(s) shall nevertheless
report to and be responsible to the Township of Clark in the performance
of their duties.
A.Â
Upon the occurrence of a breach of any of the regulations governing
the affordable unit by an owner, developer or tenant, the municipality
shall have all remedies provided at law or equity, including but not
limited to foreclosure, tenant eviction, municipal fines, a requirement
for household recertification, acceleration of all sums due under
a mortgage, recoupment of any funds from a sale in the violation of
the regulations, injunctive relief to prevent further violation of
the regulations, entry on the premises, and specific performance.
B.Â
After providing written notice of a violation to an owner, developer
or tenant of a low- or moderate-income unit and advising the owner,
developer or tenant of the penalties for such violations, the municipality
may take the following action 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)Â
The municipality may file a court action pursuant to N.J.S.A. 2A:58-11
alleging a violation, or violations, of the regulations governing
the affordable housing unit. If the owner, developer or tenant is
found 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)Â
A fine of not more than $500 or imprisonment for a period not
to exceed 90 days, or both. Each and every day that the violation
continues or exists shall be considered a separate and specific violation
of these provisions and not as a continuing offense.
(b)Â
In the case of an owner who has rented his or her low- or moderate-income
unit in violation of the regulations governing affordable housing
units, payment into the Township of Clark Affordable Housing Trust
Fund of the gross amount of rent illegally collected.
(c)Â
In the case of an owner who has rented his or her 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)Â
The municipality may file a court action in the Superior Court seeking
a judgment, which would result in the termination of the owner's equity
or other interest in the unit, in the nature of a mortgage foreclosure.
Any 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- and moderate-income unit.
C.Â
Such judgment shall be enforceable, at the option of the municipality,
by means of an execution sale by the Sheriff, at which time the low-
and moderate-income unit of the violating owner shall be sold at a
sale price which is not less than the amount necessary to fully satisfy
and pay off any first purchase money mortgage and prior liens and
the costs of the enforcement proceedings incurred by the municipality,
including attorney's fees. The violating owner shall have the right
to possession terminated as well as the title conveyed pursuant to
the Sheriffs sale.
D.Â
The proceeds of the Sheriffs sale shall first be applied to satisfy
the first purchase money mortgage lien and any prior liens upon the
low- and moderate-income unit. The excess, if any, shall be applied
to reimburse the municipality for any and all costs and expenses incurred
in connection with either the court action resulting in the judgment
of violation or the Sheriffs sale. In the event that the proceeds
from the Sheriffs sale are insufficient to reimburse the municipality
in full as aforesaid, the violating owner shall be personally responsible
for and to the extent of such deficiency, in addition to any and all
costs incurred by the municipality in connection with collecting such
deficiency. In the event that a surplus remains after satisfying all
of the above, such surplus, if any, shall be placed in escrow by the
municipality for the owner and shall be held in such escrow for a
maximum period of two years or until such earlier time as the owner
shall make a claim with the municipality for such. Failure of the
owner to claim such balance within the two-year period shall automatically
result in a forfeiture of such balance to the municipality. Any interest
accrued or earned on such balance while being held in escrow shall
belong to and shall be paid to the municipality, whether such balance
shall be paid to the owner or forfeited to the municipality.
E.Â
Foreclosure by the municipality due to violation of the regulations
governing affordable housing units shall not extinguish the restrictions
of the regulations governing affordable housing units as the same
apply to the low- and moderate-income unit. Title shall be conveyed
to the purchaser at the Sheriffs 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 Sheriffs sale shall not be entitled to any right of redemption.
F.Â
If there are no bidders at the Sheriffs sale, or if insufficient
amounts are bid to satisfy the first purchase money mortgage and any
prior liens, the municipality may acquire title to the low- and moderate-income
unit by satisfying the first purchase money mortgage and any prior
liens and crediting the violating owner with an amount equal to the
difference between the first purchase money mortgage and any prior
liens and costs of the enforcement proceedings, including legal fees
and the maximum resale price for which the low- and moderate-income
unit could have been sold under the terms of the regulations governing
affordable housing units. This excess shall be treated in the same
manner as the excess which would have been realized from an actual
sale as previously described.
G.Â
Failure of the low- and moderate-income unit to be either sold at
the Sheriffs sale or acquired by the municipality shall obligate the
owner to accept an offer to purchase from any qualified purchaser
which may be referred to the owner by the municipality, with such
offer to purchase being equal to the maximum resale price of the low-
and moderate-income unit as permitted by the regulations governing
affordable housing units.
H.Â
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 designated
pursuant to this chapter shall be filed in writing with the Court.