Borough of Fort Lee, NJ
Bergen County
By using eCode360 you agree to be legally bound by the Terms of Use. If you do not agree to the Terms of Use, please do not use eCode360.
Table of Contents
Table of Contents
[Added 6-12-2014 by Ord. No. 2014-22]
A. 
The purpose of this article is to address the municipal affordable housing obligation of the Borough of Fort Lee ("the Borough" or "Fort Lee"), as prescribed by the New Jersey Supreme Court in Southern Burlington County, N.A.A.C.P. v. Township of Mount Laurel, 92 N.J. 158 (1983) ("Mount Laurel II"), and Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel, 67 N.J. 151, cert, denied, 423 U.S. 808 (1975) ("Mount Laurel I"), and codified in the Fair Housing Act ("the Act"), N.J.S.A. 52:27D-301 et seq., which requires that every municipality has a constitutional obligation to provide for its fair share of its region's need for affordable housing.
B. 
The Fort Lee Planning Board has adopted a Housing Element and Fair Share Plan pursuant to the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., which has been endorsed by the governing body, and is pending review by the Council on Affordable Housing (COAH) as provided by the Act. The Fair Share Plan sets forth some of the means by which the Borough may address its affordable housing obligation as determined by COAH in its regulations, the current version of which is referred to as the "Third Round Rules."
C. 
However because the Supreme Court has invalidated the Third Round Rules in their entirety, and directed COAH to draft new rules, In the Matter of the Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing, 215 N.J. 578 (2013), there exists uncertainty, at least for the period during which new rules are being promulgated and judicially considered, regarding the determination of the municipal affordable housing obligation generally and for Fort Lee particularly.
D. 
Consequently the Borough has determined to address its obligation through enactment of a Borough-wide inclusionary development ordinance which requires a ten-percent set-aside of affordable housing for residential developments of three and more units while affording compensating incentives.
E. 
The provisions of the Borough's extant zoning ordinances requiring a set-aside of affordable housing for development in the R-7A Mid-Rise Residential Zone; R-10A High-Rise Apartment Residential Zone; R-12 High-Rise Apartment Residential Zone; and C-1A Planned Business District are repealed. The Borough's residential development fee ordinance is also repealed.
F. 
The Borough shall file monitoring reports with COAH in accordance with N.J.A.C. 5:96, tracking the status of the implementation of the Housing Element and Fair Share Plan. Any plan evaluation report of the Housing Element and Fair Share Plan and monitoring prepared by COAH in accordance with N.J.A.C. 5:96 shall be available to the public at the Municipal Building, Municipal Clerk's Office, 309 Main Street, Fort Lee, New Jersey, or from COAH at 101 South Broad Street, Trenton, New Jersey and on COAH's website, www.nj.gov/dca.
G. 
This article shall be subject to amendment or repeal without any further action by the Borough to the extent it is, in whole or in part, inconsistent with any ruling issued by any court, valid regulations issued by COAH or any legislative enactment.
The following terms when used in this article shall have the meanings given in this section. Terms not defined in this section shall have the meanings, if any, provided in N.J.A.C. 5:96 and N.J.A.C. 5:97.
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 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.
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 responsible for the administration of affordable units in accordance with this article, N.J.A.C. 5:96, N.J.A.C. 5:97 and N.J.A.C. 5:80-26.1 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 restricted units in an affordable housing development are affordable to low- and moderate-income households.
AFFORDABLE
A sales price or rent within the means of a low- or moderate-income household as defined in N.J.A.C. 5:97-9; 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 DEVELOPMENT
A housing development all or a portion of which consists of restricted units.
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 one-hundred-percent affordable 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 Act, credited pursuant to N.J.A.C. 5:97-4, and/or funded through an affordable housing trust fund.
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.).
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:
A. 
All the residents of the development where the unit is situated are 62 years or older; or
B. 
At least 80% of the units are occupied by one person that is 55 years or older; or
C. 
The development has been designated by the Secretary of the United States Department of Housing and Urban Development as "housing for older persons" as defined in Section 807(b)(2) of the Fair Housing Act, 42 U.S.C. § 3607.
ASSISTED LIVING RESIDENCE
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.
CERTIFIED HOUSEHOLD
A household that has been certified by an administrative agent as a low-income household or moderate-income household.
COAH OR COUNCIL
The Council on Affordable Housing of the State of New Jersey, that was established under the New Jersey Fair Housing Act, N.J.S.A. 52:27D-301 et seq.
DEFICIENT HOUSING UNIT
A housing unit with health and safety code violations that require 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 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 term "developer" shall be deemed to include a redeveloper under the Local Housing and Redevelopment Law, N.J.S.A. 40A:12A-1, et seq.
DEVELOPMENT
The construction, reconstruction, replacement, conversion, structural alteration, relocation, or enlargement of any use or change in the use of any building or other structure, 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.
INCLUSIONARY DEVELOPMENT
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.
LOW-INCOME HOUSEHOLD
A household with a total gross annual household income equal to 50% or less of the median household income.
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 or 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 county, as adopted annually by the Department.
MODERATE-INCOME HOUSEHOLD
A household with a total gross annual household income in excess of 50% but less than 80% of the median household income.
MODERATE-INCOME UNIT
A restricted unit that is affordable to a moderate-income household.
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 the Council's adopted Regional Income Limits as published annually by the Council.
REHABILITATION
The repair, renovation, alteration, weatherization 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 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 UHORP or MONI.
UHAC
The Uniform Housing Affordability Controls set forth in N.J.A.C. 5:80-26.1 et seq.
VERY LOW-INCOME HOUSEHOLD
A household with a total gross annual household income equal to 30% or less of the median household income.
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 rehabilitation.
The Borough has determined that every residential development in excess of three units shall provide for affordable housing as set forth in this article.
The Borough has determined that it will use the following mechanisms to satisfy its affordable housing obligations:
A. 
Rehabilitation Program. The purpose of the Borough's rehabilitation program is to renovate deficient housing units that are occupied by low- and moderate-income households. The provisions and requirements set forth in N.J.A.C. 5:97-6.2 shall govern the Borough's rehabilitation program.
(1) 
The Borough'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.
(2) 
Both owner-occupied and renter-occupied units shall be eligible for rehabilitation funds.
(3) 
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) 
The Borough shall dedicate a minimum of $10,000 for each unit to be rehabilitated through this program, reflecting the minimum hard cost of rehabilitation for each unit.
(5) 
The Borough shall adopt a resolution committing to fund any shortfall in the rehabilitation programs for the Borough.
(6) 
The Borough shall designate, subject to the approval of COAH, one or more administrative agents to administer the rehabilitation program in accordance with N.J.A.C. 5:96 and N.J.A.C. 5:97. The administrative agent(s) shall provide a rehabilitation manual for the owner occupancy rehabilitation program and a rehabilitation manual for the rental occupancy rehabilitation program to be adopted by resolution of the governing body and subject to approval of COAH. Both rehabilitation manuals shall be available for public inspection in the office of the Municipal Clerk and in the office(s) of the administrative agent(s).
(7) 
Units in a rehabilitation program shall be exempt from N.J.A.C. 5:97-9 and Uniform Housing Affordability Controls (UHAC), but shall be administered in accordance with the following:
(a) 
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 N.J.A.C. 5:97-9 and UHAC.
(b) 
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 N.J.A.C. 5:97-9 and UHAC.
(c) 
Rents in rehabilitated units may increase annually based on the standards in N.J.A.C. 5:97-9.
(d) 
Applicant and/or tenant households shall be certified as income-eligible in accordance with N.J.A.C. 5:97-9 and UHAC, except that households in owner occupied units shall be exempt from the regional asset limit.
B. 
Accessory apartment program.
(1) 
An accessory apartment is 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. All accessory apartments shall meet the following conditions:
(a) 
Accessory apartments shall be permitted in the R-3 One- and Two-Family Residential, the R-3A One- and Two-Family Residential, and the R-4 One- and Two-Family Residential Districts and are permitted by the Zoning Ordinance for various zoning districts, provided that the units are affordable to low- and moderate-income households. Accessory apartments may be developed as low-income or moderate-income units. (Accessory apartments may be limited to only low- or only moderate-income units as determined in the Fair Share Plan.)
(b) 
Accessory apartments shall comply with all applicable statutes and regulations of the State of New Jersey in addition to all building codes.
(c) 
At the time of initial occupancy of the unit and for at least 10 years thereafter, the accessory apartment shall be rented only to a household which is either a low- or moderate-income household.
(d) 
Rents of accessory apartments shall be affordable to low- or moderate-income households as per COAH and UHAC regulations.
(e) 
There shall be a recorded deed or declaration of covenants and restrictions applied to the property upon which the accessory apartment is located running with the land and limiting its subsequent rental or sale of the unit and the accessory apartment.
(f) 
The appropriate utility authority must certify that there is water and sewer infrastructure with sufficient capacity to serve the proposed accessory apartment. Where the proposed location is served by an individual well and/or septic system, the additional capacity necessitated by the new unit must meet the appropriate NJDEP standards.
(g) 
The Borough accessory apartment program shall not restrict the number of bedrooms in any accessory apartment.
(h) 
No accessory apartment created as a result of this article or these regulations shall exceed the gross floor area of the existing principal dwelling on the lot.
(i) 
Municipal building permit fees shall be waived in all cases involving affordable accessory apartment development under this section. An annual license and inspection fee, if required, shall be paid by unit owners.
(2) 
The maximum number of creditable accessory apartments shall be equal to no more than 10 or an amount equal to 10% of the Borough's fair share obligation, whichever is greater. (Additional units may be approved by COAH if the municipality has demonstrated successful completion of its accessory apartment program.)
(3) 
The Borough shall designate an administrative entity to administer the accessory apartment program that shall have the following responsibilities:
(a) 
The administrative agent shall administer the accessory apartment program, including advertising, income-qualifying prospective renters, setting rents and annual rent increases, maintaining a waiting list, distributing the subsidy, securing certificates of occupancy, qualifying properties, handling application forms, filing deed restrictions and monitoring reports and affirmatively marketing the affordable accessory apartment program in accordance with the UHAC.
(b) 
The administrative entity shall only deny an application for an accessory apartment if the project is not in conformance with COAH's requirements and/or the provisions of this section. All denials shall be in writing with the reasons clearly stated.
(c) 
In accordance with COAH requirements, the Borough shall provide at least $25,000 per unit to subsidize the creation of each low-income accessory apartment or $20,000 per unit to subsidize the creation of each moderate-income accessory apartment. The subsidy may be used to fund actual construction costs and/or to provide compensation for reduced rental rates.
(4) 
Property owners wishing to apply to create an accessory apartment shall submit to the administrative entity:
(a) 
A sketch of floor plan(s) showing the location, size and relationship of both the accessory apartment and the primary dwelling within the building or in another structure;
(b) 
Rough elevations showing the modifications of any exterior building facade to which changes are proposed; and
(c) 
A site development sketch showing the location of the existing dwelling and other existing buildings; all property lines; proposed addition, if any, along with the minimum building setback lines; the required parking spaces for both dwelling units; and any man-made conditions which might affect construction.
C. 
Market-to-affordable program.
(1) 
A market-to-affordable program is established to permit the purchase or subsidization of units through a written agreement with the property owner and sold or rented to low- and moderate-income households. Subject to the provisions of Subsection A(2)(c) below, the market-to-affordable programs may produce both low- and moderate-income units (the program may be limited to only low- or only moderate-income units as per the Fair Share Plan).
(2) 
The following provisions shall apply to market-to-affordable programs:
(a) 
At the time they are offered for sale or rental, eligible units may be new, preowned or vacant.
(b) 
The units shall be certified to be in sound condition as a result of an inspection performed by a licensed building inspector.
(c) 
The municipality will provide a minimum of $25,000 per unit to subsidize each moderate-income unit and/or $30,000 per unit to subsidize the each low-income unit, with additional subsidy depending on the market prices or rents in a municipality.
(d) 
The maximum number of creditable market-to-affordable units shall be equal to no more than 10 for sale units and 10 rental units or a combined total of 10% of the fair share obligation, whichever is greater. (Additional units may be approved by COAH if the municipality demonstrates the successful completion of its initial market-to-affordable program.)
(3) 
The units shall comply with N.J.A.C. 5:97-9 and UHAC with the following exceptions:
(a) 
Bedroom distribution [N.J.A.C. 5:80-26.3(b) and (c)];
(b) 
Low/moderate income split [N.J.A.C. 5:80-26.3(a)]; and
(c) 
Affordability average [N.J.A.C. 5:80-26.3(d) and (e)]; however:
[1] 
The maximum rent for a moderate-income unit shall be affordable to households earning no more than 60% of median income, and the maximum rent for a low-income unit shall be affordable to households earning no more than 44% of median income; and
[2] 
The maximum sales price for a moderate-income unit shall be affordable to households earning no more than 70% of median income, and the maximum sales price for a low-income unit shall be affordable to households earning no more than 40% of median income.
D. 
Supportive and special-needs housing unit program. All supportive and special-needs housing units shall meet the following conditions:
(1) 
Supportive and special-needs housing units shall be permitted in the R-3 One- and Two-Family Residential, the R-3A One- and Two-Family Residential, and the R-4 One- and Two-Family Residential Districts. Supportive and special-needs housing includes, but is not limited to, residential health care facilities as licensed and/or regulated by DCA or the New Jersey Department of Health and Senior Services if the facility is located with, and operated by, a licensed health care facility; group homes for people with developmental disabilities and mental illness as licensed and/or regulated by the New Jersey Department of Human Services; permanent supportive housing; and supportive shared living housing. Long-term health care facilities, including nursing homes, and Class A, B, C, D, and E boarding homes do not qualify as supportive and special-needs housing.
(2) 
Supportive and special-needs housing shall comply with all applicable statutes and regulations of the State of New Jersey in addition to all building codes.
(3) 
The following provisions shall apply to permanent supportive housing, group homes, residential health care facilities and supportive shared living housing:
(a) 
The unit of credit shall be the unit for permanent and supportive housing, but shall be the bedroom for group homes, residential health care facilities and supportive shared living housing.
(b) 
Housing that is age-restricted shall be included with the maximum number of units that may be age-restricted pursuant to N.J.A.C. 5:97-3.8.
(c) 
Units/occupancy shall not be restricted to youth under 18 years of age.
(d) 
All sites shall meet the site suitability criteria set forth in N.J.A.C. 5:973.13.
(e) 
The municipality or developer/sponsor shall have site control or the ability to control the site(s).
(4) 
The bedrooms and/or units shall comply with N.J.A.C. 5:97-9 and UHAC with the following exceptions:
(a) 
Affirmative marketing (N.J.A.C. 5:80-26.15); however, group homes, residential health care facilities, permanent supportive housing and supportive shared living housing shall be affirmatively marketed to individuals with special needs in accordance with a plan approved by the Council's Executive Director;
(b) 
Affordability average and bedroom distribution (N.J.A.C. 5:80-26.3); and
(c) 
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, group homes, residential health care facilities, supportive shared living housing and permanent supportive housing shall have the appropriate controls on affordability in accordance with N.J.A.C. 5:97-9.
(5) 
The following documentation shall be submitted prior to marketing the completed units or facility:
(a) 
An affirmative marketing plan in accordance with Subsection D(4) above; and
(b) 
If applicable, proof that the supportive and/or special-needs housing is regulated by the New Jersey Department of Health and Senior Services, the New Jersey Department of Human Services or another state agency in accordance with the requirements of this section, which includes validation of the number of bedrooms or units in which low- or moderate-income occupants reside.
(6) 
Municipal building permit fees shall be waived in all cases involving permanent supportive housing, group homes, residential health care facilities and supportive shared living housing development under this section.
A. 
Inclusionary set-aside. To ensure realistic opportunities for the creation of affordable housing, all residential development of three units or more within the Borough shall be required to provide and set aside affordable housing units at a rate of one affordable unit for every nine market rate units (a ten-percent set-aside). A fractional obligation to provide for affordable housing shall be met by a payment in lieu of construction as hereafter set forth. Due to the range of permitted uses and the variety and complexity of permitted residential densities within the Borough, the following provisions shall be applied to all residential development required to provide an affordable housing set-aside:
(1) 
Compensatory benefits. The following compensatory benefits are provided to facilitate an inclusionary project and the provision of affordable housing:
(a) 
Density bonus. Except where a density variance is granted, as set forth in Subsection A(1)(b) of this section, a 15% residential density bonus shall be permitted for all inclusionary development projects. Where the calculated density bonus results in a fraction, the density bonus shall be rounded up to the next whole unit. For example, on a one-acre site, in a zone that permits 10 units per acre, an inclusionary developer intending to construct onsite affordable units shall be permitted to construct, two additional units (10 x 15% = 1.5, rounded up to 2) or a total of 12 units. The project will provide one affordable unit (10% x the underlying zoning of 10 units per acre = 1) and 11 market-rate units.
(b) 
Density variances. A compensatory benefit will be deemed to have been awarded, and the density bonus referred to in Subsection A(1)(a) above will not apply, where the Borough's Zoning Board of Adjustment approves an increase in residential density pursuant to N.J.S.A. 40:55D-70d(5), (known as a density variance).
(c) 
Relaxation of zoning standards. In all cases, the Borough's approving land use board shall consider the granting of variances and waivers including but not limited to reduced setbacks, reduced coverage, increased floor area, increased building heights and/or additional stories so as to accommodate the increased number of units and to reasonably result in an opportunity to provide affordable housing.
(d) 
Additional incentives. Additional incentives to subsidize the creation of affordable housing available to very-low income households may be included in a developer's or redeveloper's agreement at the discretion of the Borough.
B. 
Development size threshold. Developments of less than three units shall not be subject to the required affordable housing set-aside.
C. 
Developer options for the provision of affordable housing.
(1) 
Subject to the conditions which follow, a developer required to provide affordable housing has the option to:
(a) 
Construct affordable units onsite; or
(b) 
Construct the affordable units elsewhere within the Borough ("off-site"); or
(c) 
Make a payment in lieu of constructing the affordable units; or
(d) 
Provide a combination of a payment in lieu and onsite or off-site construction.
(2) 
The onsite construction option is subject to the following controls: Developers choosing onsite construction of affordable units shall determine the number of required affordable units by dividing the permitted onsite units by 10 and then adding the density bonus. For example, a site zoned for a one-hundred-unit development shall provide 10 affordable units (10% x underlying zoning for 100 units) and is permitted a fifteen-percent density bonus for an additional 15 units for a total project of 115 units consisting of 10 affordable units and 105 market-rate units. Or, by way of further example, if a site zoned for 100 units receives a density variance allowing an additional 20 units for a total project of 120 units, 10 affordable units will be provided (10% x underlying zoning for 100 units) and 110 market-rate units.
(3) 
Off-site construction option is subject to the following controls:
(a) 
Developers choosing off-site construction of affordable units shall determine the number of required affordable units in the same fashion as in the calculation of an on-site construction obligation.
(b) 
All sites selected for off-site construction shall meet the site suitability criteria set forth in N.J.A.C. 5:97-3.13.
(4) 
The payment in lieu option is subject to the following controls:
(a) 
The required subsidy for the payment in lieu option is $180,000 per unit.
(b) 
Payments in lieu of constructing affordable units may represent whole or fractional affordable units. A fractional affordable housing requirement shall not be rounded.
(c) 
Developers choosing the payment in lieu option shall determine the number of required affordable units to be met by a payment in lieu by dividing the permitted onsite units by 10 and then adding the density bonus. For example, a site zoned for a one-hundred-unit development shall provide funding for 10 affordable units (10% x underlying zoning for 100 units) calculated at 10 x $180,000 = $1,800,000. The site is permitted a fifteen-percent density bonus for an additional 15 units for a total project of 115 market-rate units.
(d) 
Payments in lieu of constructing affordable units shall be deposited into the Borough's affordable housing trust fund pursuant to N.J.A.C. 5:97-8.4 and shall be subject to the provisions thereof.
D. 
Design. In inclusionary developments, to the extent possible, low- and moderate-income units shall be integrated with the market units.
E. 
Utilities and community amenities. Affordable units shall utilize the same type of heating source as market units within the affordable development and have access to all community amenities available to market-rate units.
F. 
Accessibility and adaptable affordable units. Inclusionary zoning ordinances shall require that the first floor of all townhouse dwelling units and all other multistory dwelling units comply with N.J.A.C. 5:97-3.14.
G. 
Affordable administration. The affordable units shall comply with N.J.A.C. 5:97-9 and UHAC.
H. 
Phasing. 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
I. 
Design. In inclusionary developments, to the extent possible, low- and moderate-income units shall be integrated with the market units.
J. 
Payments-in-lieu and off-site construction. The standards for the collection of payments in lieu of constructing affordable units or standards for constructing affordable units off site shall be in accordance with N.J.A.C. 5:97-6.4.
K. 
Utilities. Affordable units shall utilize the same type of heating source as market units within the affordable development.
All affordable housing units shall otherwise comply with the standards and requirements governing affordability controls, pricing, bedroom distribution, age restrictions, affirmative marketing, prices and rents, and unit selection, together with all related requirements as set forth in Article XIV, Affordable Housing Standards.
Where there is a site-specific fully-executed development or redevelopment agreement to provide for affordable housing as part of a project which has received approval from the Borough's municipal land use boards, which predates the effective date of this article, the terms and conditions of that agreement shall govern the provision of affordable housing for that project notwithstanding any requirements of this article to the contrary.
A. 
Extant set-aside ordinances. The provisions of the Borough's extant zoning ordinances requiring a set-aside of affordable housing for development in the R-7A Mid-Rise Residential Zone, Article XIX; R-10A High-Rise Apartment Residential Zone, Article VI; R-12 High-Rise Apartment Residential Zone, Article VII; and C-1A Planned Business District, § 410-37, are hereby repealed.
B. 
Development fee ordinance. The provisions of the Borough's Affordable Housing Development Fees Ordinance, § 261-46 et seq., imposing a fee upon residential development, are repealed. The fees imposed upon nonresidential development are unaffected by this article.
C. 
General. All ordinances or parts of ordinances inconsistent herewith are repealed as to such inconsistencies.
This article shall be subject to amendment or repeal without any further action by the Borough to the extent it is, in whole or in part, inconsistent with any ruling issued by any court, valid regulations issued by COAH or any legislative enactment.