[12-16-2019 by Ord. No.
2019:28[1]]
[1]
Editor's Note: This ordinance repealed former Ch. 32,
Affordable Housing, comprised of Ord. Nos. 2008:17, 2016:18, and 2018:13.
The purpose of this chapter is to include provisions addressing
the Borough of New Milford'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.,[1] 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.[2] 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 Borough of
New Milford.
a.
Trust Fund Activity. On the first anniversary of the entry of the
order granting New Milford a final judgment of compliance and repose
in In re Borough of New Milford Compliance with Mount Laurel Third
Round Affordable Housing Obligation, and every anniversary thereafter
through the end of the repose period, the Borough 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 New Milford a final judgment of compliance and
repose in In re Borough of New Milford Compliance with Mount Laurel
Third Round Affordable Housing Obligation, and every anniversary thereafter
through the end of the repose period, the Borough shall provide annual
reporting of the status of all affordable housing activity within
the Borough 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
Borough 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 Borough, 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 New Milford
a final judgment of compliance and repose in In re Borough of New
Milford Compliance with Mount Laurel Third Round Affordable Housing
Obligation, and every third year thereafter, the Borough 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 Borough, with copies provided to Fair Share Housing Center,
on the issue of whether the Borough has complied with its very-low-income
housing obligation.
The following terms when used in this chapter shall have the
meanings given in this subsection:
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.
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.[1]
The entity designated by the Borough 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.,[2] and the Uniform Housing Affordability Controls set forth
at N.J.A.C. 5:80-26 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 new restricted
units in an affordable housing development are affordable to low-
and moderate-income households.
A sales price or rent level that is within the means of a
low- or moderate-income household as defined within N.J.A.C. 5:93-7.4,[3] and, in the case of an ownership unit, that the sales
price for the unit conforms to the standards set forth in N.J.A.C.
5:80-26.6, as may be amended and supplemented, and, in the case of
a rental unit, that the rent for the unit conforms to the standards
set forth in N.J.A.C. 5:80-26.12, as may be amended and supplemented.
A development included in or approved pursuant to the Housing
Element and Fair Share Plan or otherwise intended to address the Borough's
fair share obligation, and includes, but is not limited to, an inclusionary
development, a municipal construction project or a 100% affordable
housing development.
Any mechanism in a municipal fair share plan prepared or
implemented to address a municipality's fair share obligation.
A housing unit proposed or created pursuant to the Fair Housing
Act[4] 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: 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.
The New Jersey Housing and Mortgage Finance Agency established
by P.L. 1983, c. 530 (N.J.S.A. 55:14K-1 et seq.).
A structure in which households live in distinct bedrooms,
yet share kitchen and plumbing facilities, central heat and common
areas. Alternative living arrangements include, but are not limited
to: transitional facilities for the homeless; Class A, B, C, D and
E boarding homes as regulated by the 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.
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.
The Borough of New Milford, in Bergen County, New Jersey.
A household that has been certified by an administrative
agent as a low-income household or moderate-income household.
The Council on Affordable Housing, as established by the
New Jersey Fair Housing Act (N.J.S.A. 52:27D-301 et seq.).
The State of New Jersey Department of Community Affairs.
A housing unit with health and safety code violations that
requires the repair or replacement of a major system. A major system
includes weatherization, roofing, plumbing (including wells), heating,
electricity, sanitary plumbing (including septic systems), lead paint
abatement and/or load-bearing structural systems.
Any person, partnership, association, company or corporation
that is the legal or beneficial owner or owners of a lot or any land
included in a proposed development including the holder of an option
to contract to purchase, or other person having an enforceable proprietary
interest in such land.
The division of a parcel of land into two or more parcels,
the construction, reconstruction, conversion, structural alteration,
relocation, or enlargement of any use or change in the use of any
building or other structure, or of any mining, excavation or landfill,
and any use or change in the use of any building or other structure,
or land or extension of use of land, for which permission may be required
pursuant to N.J.S.A. 40:55D-1 et seq.
The plan that describes the mechanisms, strategies and the
funding sources, if any, by which the Borough 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.[5]
The portion of the Borough's Master Plan, required by
the Municipal Land Use Law ("MLUL"), N.J.S.A. 40:55D-28b(3) and the
Act, that includes the information required by N.J.A.C. 5:93-5.1[6] and establishes the Borough's fair share obligation.
A development containing both affordable units and market-rate
units. This term includes, but is not limited to: new construction,
the conversion of a nonresidential structure to residential use and
the creation of new affordable units through the gut rehabilitation
or reconstruction of a vacant residential structure.
A household with a total gross annual household income equal
to 50% or less of the 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 and load-bearing structural systems.
Housing not restricted to low- and moderate-income households
that may sell or rent at any price.
The median income by household size for the applicable housing
region, as adopted annually by COAH or a successor entity approved
by the court.
A household with a total gross annual household income in
excess of 50% but less than 80% of the regional median household income
by household size.
A restricted unit that is affordable to a moderate-income
household.
A structure containing five or more dwelling units.
The employee charged by the Mayor and Council with the responsibility
for oversight and administration of the affordable housing program
for New Milford.
Any sale or transfer of ownership other than the transfer
of ownership between husband and wife; the transfer of ownership between
former spouses ordered as a result of a judicial decree of divorce
or judicial separation, but not including sales to third parties;
the transfer of ownership between family members as a result of inheritance;
the transfer of ownership through an executor's deed to a Class
A beneficiary and the transfer of ownership by court order.
A process by which currently income-eligible households are
selected for placement in affordable housing units such that no preference
is given to one applicant over another except for purposes of matching
household income and size with an appropriately priced and sized affordable
unit (e.g., by lottery).
The maximum housing value in each housing region affordable
to a four-person household with an income at 80% of the regional median
as defined by duly adopted Regional Income Limits published annually
by COAH or a successor entity.
The repair, renovation, alteration or reconstruction of any
building or structure, pursuant to the Rehabilitation Subcode, N.J.A.C.
5:23-6.
The gross monthly cost of a rental unit to the tenant, including
the rent paid to the landlord, as well as an allowance for tenant-paid
utilities computed in accordance with allowances published by DCA
for its Section 8 program. In assisted living residences, rent does
not include charges for food and services.
A dwelling unit, whether a rental unit or an ownership unit,
that is subject to the affordability controls of N.J.A.C. 5:80-26.1,
as amended and supplemented, but does not include a market-rate unit
financed under UHORP or MONI.
The Uniform Housing Affordability Controls set forth in N.J.A.C.
5:80-26 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 purposes of a rehabilitation
program.
[1]
Editor's Note: See now N.J.A.C. 5:23-3.14(b).
[2]
Editor's Note: In accordance with N.J.S.A. 52:14B-5.1b,
Chapter 93, Substantive Rules of the New Jersey Council on Affordable
Housing for the Period Beginning June 6, 1994, expired on 10-16-2016.
[3]
Editor's Note: In accordance with N.J.S.A. 52:14B-5.1b,
Chapter 93, Substantive Rules of the New Jersey Council on Affordable
Housing for the Period Beginning June 6, 1994, expired on 10-16-2016.
[4]
Editor's Note: See N.J.S.A. 52:27D-301 et seq.
[5]
Editor's Note: In accordance with N.J.S.A. 52:14B-5.1b,
Chapter 93, Substantive Rules of the New Jersey Council on Affordable
Housing for the Period Beginning June 6, 1994, expired on 10-16-2016.
[6]
Editor's Note: In accordance with N.J.S.A. 52:14B-5.1b,
Chapter 93, Substantive Rules of the New Jersey Council on Affordable
Housing for the Period Beginning June 6, 1994, expired on 10-16-2016.
Any residential development consisting of five or more dwelling
units, at a density above six units per acre, that is permitted pursuant
to a variance or rezoning shall produce low- and moderate-income housing
on site or elsewhere in the Borough or pay a fee in lieu of providing
affordable units. The number of affordable units to be provided or
in lieu payment shall be equal to 20% of the residential units in
the development, or 15% for affordable rental units. The amount of
the payment in lieu of providing housing shall be as determined by
the appropriate rules of the New Jersey Council on Affordable Housing
and any other relevant state regulations.
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 Borough's obligation may be met with
age-restricted units. At least half of all affordable units in the
Borough'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:
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 b2(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 b2(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,[2] or evidence that the Borough 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 Borough 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 b2(f)(2) above shall be used by the Borough for the sole purpose of making the adaptable entrance of an affordable unit accessible when requested to do so by a person with a disability who occupies or intends to occupy the unit and requires an accessible entrance.
(4)
The developer of the restricted units shall submit a design
plan and cost estimate to the Borough 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 meets
the requirements of the Barrier Free Subcode, N.J.A.C. 5:23-7,[3] and that the cost estimate of such conversion is reasonable,
payment shall be made to the Borough's Affordable Housing Trust
Fund in care of the Borough Chief Financial Officer who shall ensure
that the funds are deposited into the Affordable Housing Trust Fund
and appropriately earmarked.
[3]
Editor's Note: See now N.J.A.C. 5:23-3.14(b).
(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.[4]
[4]
Editor's Note: See now N.J.A.C. 5:23-3.14(b).
[2]
Editor's Note: See now N.J.A.C. 5:23-3.14(b).
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:
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,
homeowners' and private mortgage insurance and condominium or
homeowners' association fees do not exceed 28% of the eligible
monthly income of the appropriate size household as determined under
N.J.A.C. 5:80-26.4, as may be amended and supplemented; provided,
however, that the price shall be subject to the affordability average
requirement of N.J.A.C. 5:80-26.3, as may be amended and supplemented.
8.
The initial rent for a restricted rental unit shall be calculated
so as not to exceed 30% of the eligible monthly income of the appropriate
size household, including an allowance for tenant paid utilities,
as determined under N.J.A.C. 5:80-26.4, as may be amended and supplemented;
provided, however, that the rent shall be subject to the affordability
average requirement of N.J.A.C. 5:80-26.3, as may be amended and supplemented.
9.
The price of owner-occupied low- and moderate-income units may increase
annually based on the percentage increase in the regional median income
limit for each housing region. In no event shall the maximum resale
price established by the administrative agent be lower than the last
recorded purchase price.
10.
The rent of low- and moderate-income units may be increased annually
based on the permitted percentage increase in the 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:
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 Borough 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.
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 homeowners' 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 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, homeowners' and private mortgage
insurance and condominium or homeowners' 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 subsection, 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 Borough 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. For new projects receiving 9% low-income
housing tax credits, a control period of not less than a thirty-year
compliance period plus a fifteen-year extended use period shall be
required.
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 Bergen. 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:
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.
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.
a.
The Borough shall appoint a specific municipal employee to serve
as a Municipal Housing Liaison responsible for administering the affordable
housing program, including affordability controls, the affirmative
marketing plan, monitoring and reporting, and, where applicable, supervising
any contracted administrative agent. The Borough shall adopt an ordinance
creating the position of Municipal Housing Liaison. The Borough 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 Borough,
including the following responsibilities which may not be contracted
out to the administrative agent:
1.
Serving as the Borough'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 Borough'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 Borough 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 Borough Clerk, in the office
of the Municipal Housing Liaison, and in the office(s) of the administrative
agent(s). The Municipal Housing Liaison shall supervise the contracting
administrative agent(s).
The administrative agent shall be an independent entity serving
under contract to and reporting to the Borough. 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 N.J.A.C.
5:80-26.14, 5:80-16 and 5:80-18 thereof, which include:
a.
Affirmative Marketing:
1.
Conducting an outreach process to affirmatively market affordable
housing units in accordance with the Borough'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 Borough when referring households for certification
to affordable units; and
7.
Notifying the following entities of the availability of affordable
housing units in the Borough of New Milford: Fair Share Housing Center,
the New Jersey State Conference of the NAACP, the Latino Action Network,
the Supportive Housing Association, and the New Jersey Housing Resource
Center.
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 Bergen
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 Borough 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 Borough 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
Borough'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 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 Borough 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 1 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 1, comprised
of Bergen, Hudson, Passaic and Sussex Counties.
d.
In accordance with N.J.S.A. 52:27D-311(j), the Borough and developer
or residential development owner may enter into an agreement to provide
a preference for affordable housing to low- to moderate-income veterans
who served in time of war or other emergency, as defined in Section
1 of P.L. 1963, c. 171 (N.J.S.A. 54:4-8.10), of up to 50% of the affordable
units in that particular project. This preference shall be established
in the applicant selection process for affordable units so that applicants
who are veterans who served in time of war or other emergency, as
referenced in this subsection, 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 this subsection, 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 this subsection shall not affect a municipality's
ability to receive credit for the unit for the New Jersey Council
of Affordable Housing or its successor.
e.
The Borough has the ultimate responsibility for adopting the affirmative
marketing plan and for the proper administration of the affirmative
marketing program, including initial sales and rentals and resales
and rerentals. The administrative agent designated by the Borough
shall implement the affirmative marketing plan to assure the affirmative
marketing of all affordable units.
f.
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.
g.
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.
h.
The affirmative marketing process for available affordable units
shall begin at least four months (120 days) prior to the expected
date of occupancy.
i.
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 Borough in which the units are located; and the developer's
rental office. Preapplications shall be emailed or mailed to prospective
applicants upon request.
j.
In addition to other affirmative marketing strategies, the administrative
agent shall provide specific notice of the availability of affordable
housing units in New Milford, and copies of the applications forms,
to the following entities: Fair Share Housing Center, the New Jersey
State Conference of the NAACP, the Latino Action Network, the Supportive
Housing Association, and the New Jersey Housing Resource Center.
k.
The costs of advertising and affirmative marketing of the affordable
units shall be the responsibility of the developer, sponsor or owner.
a.
Upon the occurrence of a breach of any of the regulations governing
the affordable unit by an owner, developer or tenant, the Borough
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 Borough
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 Borough 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 Borough Affordable Housing Trust Fund of the
gross amount of rent illegally collected;
(c)
In the case of an owner who has rented a low- or moderate-income
unit in violation of the regulations governing affordable housing
units, payment of an innocent tenant's reasonable relocation
costs, as determined by the court.
2.
The Borough 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 Borough,
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 Borough,
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 Borough 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 Borough 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 Borough 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 Borough 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 Borough 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 Borough. Any interest
accrued or earned on such balance while being held in escrow shall
belong to and shall be paid to the Borough, whether such balance shall
be paid to the owner or forfeited to the Borough.
(c)
Foreclosure by the Borough 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 Borough 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 Borough shall obligate
the owner to accept an offer to purchase from any qualified purchaser
which may be referred to the owner by the Borough, 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.
[12-16-2019 by Ord. No.
2019:28]
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 COAH developing
rules as amended from time to time and/or in accordance with the enacted
legislation and/or in accordance with directives from the courts.
The purpose of this section is to establish standards for the collection,
maintenance and expenditure of development fees pursuant to the above.
Fees collected pursuant to this section shall be used for the sole
purpose of providing low- and moderate-income housing.
The following terms, as used in this section, shall have the
following meanings:
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% affordable development.
The New Jersey Council on Affordable Housing.
The legal or beneficial owner or owners of a lot or of any
land proposed to be included in a proposed development, including
the holder of an option or contract to purchase, or other person having
an enforceable proprietary interest in such land.
Money paid by a developer for the improvement of property
as permitted in N.J.A.C. 5:93-8.[1]
The value of a property determined by the Municipal Tax Assessor
through a process designed to ensure that all property in the municipality
is assessed at the same assessment ratio or ratios required by law.
Estimates at the time of issuance of a building permit may be obtained
utilizing estimates for construction cost. Final equalized assessed
value will be determined at project completion by the Municipal Tax
Assessor.
[1]
Editor's Note: In accordance with N.J.S.A. 52:14B-5.1b,
Chapter 93, Substantive Rules of the New Jersey Council on Affordable
Housing for the Period Beginning June 6, 1994, expired on 10-16-2016.
a.
Imposed Fees.
1.
Within all zone districts, developers of residential housing, except
for developers of the types of development specifically exempted below,
shall pay a fee of 1 1/2% of the equalized assessed value for
residential development, provided that no increased density is permitted.
2.
When an increase in residential density has been permitted pursuant
to N.J.S.A. 40:55D-70d (known as a "d" variance) or pursuant to zoning
amendment or pursuant to the adoption of a redevelopment plan pursuant
to New Jersey Local Redevelopment and Housing Law (N.J.S.A. 40A:12-1
et seq.), developers shall be required to pay a development fee of
a maximum of 6% of the equalized assessed value for each additional
unit that may be realized.
b.
Eligible Exactions, Ineligible Exactions and Exemptions for Residential
Development.
1.
The housing portion of affordable housing developments, developments
where the developer is providing for the construction of affordable
units elsewhere in the municipality, and developments where the developer
has made a payment in lieu of on-site construction of affordable units
shall be exempt from development fees. Other site improvements ancillary
or accessory to an affordable housing development shall pay the fee.
2.
Developments that have received preliminary or final site plan approval
prior to the adoption of a municipal development fee ordinance shall
be exempt from development fees, unless the developer seeks a substantial
change in the approval or the developer has accepted responsibility
to pay a development fee. Where a site plan approval does not apply,
a zoning and/or building permit shall be synonymous with preliminary
or final site plan approval for this purpose. A development fee shall
be based on the percentage that applies on the date that a building
permit is issued, regardless of the time of collection of the fee.
3.
Owner-occupied residential structures demolished and replaced as
a result of a fire, flood, or natural disaster shall be exempt from
paying a development fee.
4.
Development fees shall be imposed and collected when an existing structure undergoes a change that results in an increased assessed value, not exempt as set forth in Subsection 32-2.3b5 below. The development fee shall be calculated on the increase in the equalized assessed value of the improved structure.
5.
The development fee shall not apply to the expansion of a single-
or two-family home where the net increase interior floor area is less
than 15% of the existing structure. In no event shall the development
fee be collected where the total increase in floor area is 500 square
feet or less. Upon the request of the Zoning Officer, the property
owner shall produce, within 30 days, a set of certified plans signed
by a licensed architect, confirming the amount of previously existing
and as-built conditions.
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.
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 the final certificate of occupancy is issued. If the calculation
required under this subsection 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.
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 Nonresidential Development Certification/Exemption Form. Any
exemption claimed by a developer shall be substantiated by that developer.
4.
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.
5.
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 Borough of New Milford as a lien against
the real property of the owner.
a.
Collection Procedures.
1.
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.
2.
For nonresidential developments only, the developer shall also be
provided with a copy of Form N-RDF, State of New Jersey Nonresidential
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 the Form N-RDF. The Tax Assessor
shall verify exemptions and prepare estimated and final assessments
as per the instructions provided in Form N-RDF.
3.
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.
4.
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.
5.
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.
6.
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.
7.
Should the Borough of New Milford 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 Section 37 of P.L. 2008, c. 46 (N.J.S.A. 40:55D-8.6).
8.
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 building permit and that determined at issuance of certificate
of occupancy.
b.
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 Borough of New Milford.
Appeals from a determination of the Board may be made to the Tax Court
in accordance with the provisions of the State Uniform Tax 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 the Borough of
New Milford. Appeals from a determination of the Director may be made
to the Tax Court in accordance with the provisions of the State Uniform
Tax 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.
c.
Retention of Fees. Any fees collected prior to the adoption or amendment
of this section shall be retained by the Borough of New Milford pursuant
to COAH's rules regarding the retention of development fees.
Imposed and collected development fees that are challenged shall
be placed in an interest-bearing escrow account by Borough of New
Milford. If all or a portion of the contested fees are returned to
the developer, the accrued interest on the returned amount shall also
be returned.
a.
There is hereby created a separate, interest-bearing housing trust
fund in a bank utilized by the Borough for its ordinary business purposes,
for the purpose of depositing development fees collected from residential
and nonresidential developers, any other payments made pursuant to
this section from residential and nonresidential developers and proceeds
from the sale of units with extinguished controls. All development
fees paid by developers pursuant to this section shall be deposited
into this fund.
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 Borough of New Milford's
affordable housing program.
a.
Money deposited in a housing trust fund may be used for any activity
approved by COAH or in accordance with any directives from the courts
for addressing the Borough of New Milford's low- and moderate-income
housing obligation. Such activities may include, but are not necessarily
limited to: housing rehabilitation; new construction; the purchase
of land for low- and moderate-income housing; preservation or purchase
of housing for the purpose of maintaining or implementing affordability
controls, including the extension of controls, accessory apartment,
market to affordable, or regional housing partnership programs, conversion
of existing nonresidential buildings to create new affordable units,
extensions and/or improvements of roads and infrastructure to low-
and moderate-income housing sites; assistance designed to render units
to be more affordable to low- and moderate-income households; and
administrative costs necessary to implement the Borough of New Milford's
housing element. The expenditure of all money shall conform to a spending
plan approved by COAH or by the courts.
b.
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 municipal Fair Share Plan to make them affordable to
households earning 30% or less of median income.
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.
c.
The Borough of New Milford 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. 5:96-18.[1]
[1]
Editor's Note: The provisions of N.J.A.C. 5:96 expired
6-2-2015.
d.
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 COAH's or the courts monitoring requirements.
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.
e.
Funds shall not be expended to reimburse the Borough of New Milford
for housing activities carried out prior to the establishment of the
Affordable Housing Trust Fund.
f.
This section is intended to be interpreted and applied consistent
with the Statewide Non-Residential Development Fee Act (N.J.S.A. 40:55D-8.1
et seq.). In the event of any inconsistency, this section shall be
read so as to comply with the Act.
The Borough of New Milford shall complete and return to COAH
or to the courts all monitoring forms included in monitoring requirements
related to 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 Borough of New Milford's housing program, as well as
to the expenditure of revenues and implementation of the plan certified
by COAH or the courts. All monitoring reports shall be completed on
forms designed by COAH or the courts.
The ability for the Borough of New Milford to impose, collect
and expend development fees shall expire with its substantive certification
or judgment of compliance unless New Milford has filed an adopted
Housing Element and Fair Share Plan with COAH, has petitioned for
substantive certification, and has received COAH's approval of
its development fee ordinance. If the Borough of New Milford fails
to renew its ability to impose and collect development fees prior
to undetermined date in 2018, it may resume the imposition and collection
of development fees only by complying with requirements of N.J.A.C.
5:94-6.[1] The Borough of New Milford shall not impose a development
fee on a development that receives a building permit after the expiration
of its substantive certification or judgment of compliance on such
a development. The Borough of New Milford will not expend development
fees after the expiration of its substantive certification or judgment
of compliance on undetermined date.
[1]
Editor's Note: In accordance with N.J.S.A. 52:14B-5.1b,
Chapter 94, Substantive Rules of the New Jersey Council on Affordable
Housing for the Period Beginning December 20, 2004, expired on September
11, 2016.
