[Ord. No. 08-30 § 8-1; Ord. No. 08-30 § 8-2; Ord. No. 05-08 § III; Ord. No. 05-49 § I; Ord. No. 07-32 § 1; Ord.
No. 08-30 § 8-3; Ord.
No. 05-08 § III; Ord.
No. 05-49 § I; Ord. No.
07-32 § 1; Ord. No. 08-30 § 8-4; Ord. No. 08-30 § 8-5; Ord. No. 08-30 § 8-6; Ord. No. 08-30 § 8-7; Ord. No. 08-30 § 8-8; Ord. No. 08-30 § 8-9; Ord. No. 06-31 § 1; Ord. No. 08-30 § 2; Ord. No. 03-35 §§ 1-16; Ord. No. 03-36 §§ 1-13;
amended 3-18-2020 by Ord. No. 20-03]
The following terms, when used in this article, shall have the
following meanings:
The Fair Housing Act of 1985, P.L. 1985, c. 222 (N.J.S.A.
52:27D-301 et seq.)
Constructed in compliance with the technical design standards
of the Barrier Free Subcode, N.J.A.C. 5:23-7.
The entity designated by the Township to administer affordable
units in accordance with this article, N.J.A.C. 5:93, and UHAC (N.J.A.C.
5:80-26).
A regional marketing strategy designed to attract buyers
and/or renters of affordable units pursuant to N.J.A.C. 5:80-26.15.
The average percentage of median income at which new restricted
units in an affordable housing development are affordable to very-low-,
low-, and moderate-income households.
A sales price or rent level that is within the means of a
low- or moderate-income household as defined within N.J.A.C. 5:93-7.4,
and, in the case of an ownership unit, that the sales price for the
unit conforms to the standards set forth in N.J.A.C. 5:80-26.6, as
may be amended and supplemented, and, in the case of a rental unit,
that the rent for the unit conforms to the standards set forth in
N.J.A.C. 5:80-26.12, as may be amended and supplemented.
A development included in or approved pursuant to the Housing
Element and Fair Share Plan or otherwise intended to address the Township's
fair share obligation, and includes, but is not limited to, an inclusionary
development, a municipal construction project or a 100-percent affordable
housing development.
Any mechanism in a municipal Fair Share Plan prepared or
implemented to address a municipality's fair share obligation.
A housing unit proposed or created pursuant to the Act and
approved for crediting by the Court and/or funded through an affordable
housing trust fund.
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 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.
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.
A household that has been certified by an administrative
agent as a very-low-income, 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 construction official or his/her designee.
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 or an option
to contract to purchase, or other person having an enforceable proprietary
interest in such land.
The division of a parcel of land into two or more parcels,
the construction, reconstruction, conversion, structural alteration,
relocation, or enlargement of any use or change in the use of any
building or other structure, or of any mining, excavation or landfill,
and any use or change in the use of any building or other structure,
or land or extension of use of land, for which permission may be required
pursuant to N.J.S.A. 40:55D-1, et seq.
Money paid by a developer for the improvement of property
as permitted at N.J.A.C. 5:97-8.3.
The assessed value of a property divided by the current average
ratio of assessed to true value for the municipality in which the
property is situated, as determined in accordance with Sections 1,
5, and 6 of P.L. 1973, c.123 (N.J.S.A. 54:1-35a through 54:1-35c).
Those strategies that minimize the impact of development
on the environment, and enhance the health, safety and well-being
of residents by producing durable, low-maintenance, resource-efficient
housing, including the use of green infrastructure, while making optimum
use of existing infrastructure and community services.
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 very-low-, 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.
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
et seq, as amended and supplemented, but does not include a market-rate
unit financed under UHORP or MONI.
The settlement agreement between the Township of Millstone
and Fair Share Housing Center dated September 5, 2019, in IMO Township
of Millstone, Docket No. MON-L-2501-15.
The Township of Millstone.
The Uniform Housing Affordability Controls set forth in N.J.A.C.
5:80-26-1 et seq.
A household with a total gross annual household income equal
to or less than 30% 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;
is considered a major system for purposes of a rehabilitation program.
The Township of Millstone shall comply with the following monitoring
and reporting requirements regarding the status of the implementation
of its Housing Element and Fair Share Plan:
a.
Beginning
on July 1, 2020, and on every anniversary of that date through July
1, 2025, the Township shall provide annual reporting of its Affordable
Housing Trust Fund activity to the New Jersey Department of Community
Affairs, Council on Affordable Housing, or Local Government Services,
or other entity designated by the State of New Jersey, with a copy
provided to Fair Share Housing Center (FSHC) and posted on the municipal
website, using forms developed for this purpose by the New Jersey
Department of Community Affairs (NJDCA), Council on Affordable Housing
(COAH), or Local Government Services (NJLGS). 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.
Beginning
on July 1, 2020, and on every anniversary of that date through July
1, 2025, the Township shall provide annual reporting of the status
of all affordable housing activity within the municipality through
posting on the municipal website with a copy of such posting provided
to FSHC, using forms previously developed for this purpose by COAH
or any other forms endorsed by the Special Master and FSHC.
c.
By July
1, 2020, as required pursuant to N.J.S.A. 52:27D-313, the Township
will post on its municipal website, with a copy provided to FSHC,
a status report as to its implementation of its Plan and an analysis
of whether any unbuilt sites or unfulfilled mechanisms continue to
present a realistic opportunity and whether any mechanisms to meet
unmet need should be revised or supplemented. Such posting shall invite
any interested party to submit comments to the municipality, with
a copy to FSHC, regarding whether any sites no longer present a realistic
opportunity and should be replaced and whether any mechanisms to meet
unmet need should be revised or supplemented. Any interested party
may by motion request a hearing before the Court regarding these issues.
d.
By July
1, 2020, and every third year thereafter, as required by N.J.S.A.
52:27D-329.1, the Township will post on its municipal website, with
a copy provided to FSHC, a status report as to its satisfaction of
its very-low-income requirements, including its family very-low-income
requirements. Such posting shall invite any interested party to submit
comments to the municipality and FSHC on the issue of whether the
municipality has complied with its very-low-income and family very-low-income
housing obligations.
a.
The provisions
of this article shall apply to all affordable housing developments
and affordable housing units that currently exist and that are proposed
to be created within the Township of Millstone pursuant to the Township’s
most recently adopted Housing Element and Fair Share Plan and the
settlement agreement.
b.
This article
shall apply to all developments that contain very-low-, low-, and
moderate-income housing units, including any currently unanticipated
future developments that will provide very-low-, low-, and moderate-income
housing units, and also including projects funded with low-income
housing tax credits.
a.
The administration
of an alternative living arrangement shall be in compliance with N.J.A.C.
5:93-5.8 and UHAC, with the following exceptions:
b.
With the
exception of units established with capital funding through a twenty-year
operating contract with the Department of Human Services, Division
of Developmental Disabilities, alternative living arrangements shall
have at least thirty-year controls on affordability in accordance
with UHAC, unless an alternative commitment is approved by the Court.
c.
The service
provider for the alternative living arrangement shall act as the administrative
agent for the purposes of administering the affirmative marketing
and affordability requirements for the alternative living arrangement.
In inclusionary developments, the following schedule for the
issuance of certificates of occupancy for the required affordable
housing units relative to the issuance of certificates of occupancy
for the permitted market units shall be as follows:
|
Maximum Percentage of Market-Rate Units Completed (COs Issued)
|
Maximum Percentage of Low- and Moderate-Income Units Completed
(COs Issued)
|
|---|---|
|
25%
|
0%
|
|
25% +1
|
10%
|
|
50%
|
50%
|
|
75%
|
75%
|
|
90%
|
100%
|
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. 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 regional median income by household size). The very-low-income
units shall be counted as part of the required number of low-income
units within the development.
2.
At least
25% of the obligation shall be met through rental units, including
at least half in rental units available to families.
3.
A maximum
of 25% of the Township's obligation may be met with age-restricted
units. At least half of all affordable units in the Township's Plan
shall be available to families.
4.
In each
affordable development, at least 50% of the restricted units within
each bedroom distribution shall be very-low- or low-income units including
that 13% shall be very-low-income.
5.
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.
6.
Affordable
developments that are age-restricted shall be structured such that
the number of bedrooms shall equal the number of age-restricted very-low-,
low-, and moderate-income units within the inclusionary development.
This standard may be met by having all one-bedroom units or by having
a two-bedroom unit for each efficiency unit.
b.
Accessibility
Requirements:
1.
The first
floor of all restricted townhouse dwelling units and all restricted
units in all other multistory buildings shall be subject to the technical
design standards of the Barrier Free Subcode, N.J.A.C. 5:23-7 and
the following.
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 b1 through 4 above have been satisfied, then an interior accessible route of travel shall not be required between stories within an individual unit; and
(f)
An accessible entranceway as set forth at P.L. 2005, c. 350 (N.J.S.A.
52:27D-311a et seq.) and the Barrier Free Subcode, N.J.A.C. 5:23-7,
or evidence that Millstone Township has collected funds from the developer
sufficient to make 10% of the adaptable entrances in the development
accessible:
(1)
Where a unit has been constructed with an adaptable entrance, upon
the request of a disabled person who is purchasing or will reside
in the dwelling unit, an accessible entrance shall be installed.
(2)
To this end, the builder of restricted units shall deposit funds
within the Township of Millstone’s 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 Township of Millstone 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 Construction Official of the Township of
Millstone for the conversion of adaptable to accessible entrances.
(5)
Once the Construction Official has determined that the design plan
to convert the unit entrances from adaptable to accessible meet the
requirements of the Barrier Free Subcode, N.J.A.C. 5:23-7, and that
the cost estimate of such conversion is reasonable, payment shall
be made to the Township's Affordable Housing Trust Fund in care of
the Township Treasurer who shall ensure that the funds are deposited
into the Affordable Housing Trust Fund and appropriately earmarked.
(g)
Full compliance with the foregoing provisions shall not be required
where an entity can demonstrate that it is "site impracticable" to
meet the requirements. Determinations of site impracticability shall
be in compliance with the Barrier Free Subcode, N.J.A.C. 5:23-7.
c.
Design:
1.
In inclusionary
developments, to the extent possible, very-low-, low-, and moderate-income
units shall be integrated with the market units.
2.
In inclusionary
developments, very-low-, low-, and moderate-income units shall have
access to all of the same common elements and facilities as the market
units.
d.
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 using the calculation
set forth below. Income limits for all affordable units that are created
in the Township for which income limits are not already established
through a federal program exempted from the UHAC pursuant to N.J.A.C
5:80-26.1 shall be updated by the Township annually within 30 days
of the publication of determinations of median income by the Department
of Housing and Urban Development (HUD) as follows:
(a)
Regional income limits shall be established for the region within
which the Township is located based on the median income by household
size, which shall be established by a regional weighted average of
uncapped Section 8 income limits published by HUD. To compute this
regional income limit, the HUD determination of median County income
for a family of four is multiplied by the estimated households within
the County according to the most recent decennial Census. The resulting
product for each County within a housing region is summed. The sum
is divided by the estimated total households from the most recent
decennial Census in the Township's housing region. This quotient represents
the regional weighted average of median income for a household of
four. The income limit for a moderate-income unit for a household
of four shall be 80% of the regional weighted average median income
for a family of four. The income limit for a low-income unit for a
household of four shall be 50% of the regional weighted average median
income for a family of four. The income limit for a very-low-income
unit for a household of four shall be 30% of the regional weighted
average median income for a family of four. These income limits shall
be adjusted by household size based on multipliers used by HUD to
adjust median income by household size. In no event shall the income
limits be less than those for the previous year.
(b)
The income limits are the result of applying the percentages set forth in Subsection d1(a) above to HUD's determination of median income for the fiscal year 2019 and shall be utilized until the Township updates the income limits after HUD has published revised determinations of median income for the next fiscal year.
(c)
The Regional Asset Limit used in determining an applicant's eligibility for affordable housing pursuant to N.J.A.C. 5:80-26.16(b)(3) shall be calculated by the Township annually by taking the percentage increase of the income limits calculated pursuant to Subsection d1(a) above over the previous year's income limits and applying the same percentage increase to the Regional Asset Limit from the prior year. In no event shall the Regional Asset Limit be less than that for the previous year.
(d)
The resale prices of owner-occupied very-low-, low-, and moderate-income
units may increase annually based on the percentage increase in the
regional median income limit for each housing region determined pursuant
to the above methodology. In no event shall the maximum resale price
established by the administrative agent be lower than the last recorded
purchase price.
(e)
The rent levels of very-low-, low-, and moderate-income units may
be increased annually based on the percentage increase in the Housing
Consumer Price Index for the Northeast Urban Area, upon its publication
for the prior calendar year. 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.
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, which
very-low-income units shall be part of the low-income 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 shall be affordable to a one-person household;
(b)
A one-bedroom unit shall be affordable to a one-and-one-half-person
household;
(c)
A two-bedroom unit shall be affordable to a three-person household;
(d)
A three-bedroom unit shall be affordable to a four-and -one-half-person
household; and
(e)
A four-bedroom unit shall be affordable to a six-person household.
6.
In determining
the initial sales prices and rents for compliance with the affordability
average requirements for restricted units in assisted living facilities
and age-restricted developments, the following standards shall be
used:
(a)
A studio shall be affordable to a one-person household;
(b)
A one-bedroom unit shall be affordable to a one-and-one-half-person
household; and
(c)
A two-bedroom unit shall be affordable to a two-person household
or to two one-person households.
(d)
The initial purchase price for all restricted ownership units shall
be calculated so that the monthly carrying cost of the unit, including
principal and interest (based on a mortgage loan equal to 95% of the
purchase price and the Federal Reserve H.15 rate of interest), taxes,
homeowner and private mortgage insurance and condominium or homeowner
association fees do not exceed 28% of the eligible monthly income
of the appropriate size household as determined under N.J.A.C. 5:80-26.4,
as may be amended and supplemented; provided, however, that the price
shall be subject to the affordability average requirement of N.J.A.C.
5:80- 26.3, as may be amended and supplemented.
7.
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.
8.
The price
of owner-occupied very-low-, 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.
9.
The rents
of very-low-, low-, and moderate-income units may be increased annually
based on the permitted percentage increase in the Housing Consumer
Price Index for the Northeast Urban Area. This increase shall not
exceed 9% in any one year. Rent increases for units constructed pursuant
to low-income housing tax credit regulations shall be indexed pursuant
to the regulations governing low-income housing tax credits.
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 the Section 8 program.
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 newly constructed restricted ownership units shall be
in accordance with N.J.A.C. 5:80-26.5, except as modified by the terms
of the settlement agreement between the Township of Millstone and
Fair Share Housing Center (FSHC), as said settlement agreement may
be further amended and supplemented, and each newly constructed restricted
ownership unit shall remain subject to the requirements of this article
for a period of at least 30 years, until Millstone Township takes
action to release the unit from such requirements; prior to such action,
a restricted ownership unit must remain subject to the requirements
of N.J.A.C. 5:80-26.1, except as modified by the terms of the settlement
agreement between the Township of Millstone and Fair Share Housing
Center (FSHC), as said settlement agreement may be further 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 article, 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 article 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 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.
Price restrictions for restricted ownership units shall be in
accordance with N.J.A.C. 5:80-26.1, as may be amended and supplemented,
including:
a.
The initial
purchase price for a restricted ownership unit shall be approved by
the administrative agent.
b.
The administrative
agent shall approve all resale prices, in writing and in advance of
the resale, to assure compliance with the foregoing standards.
c.
The master
deeds of inclusionary developments shall provide no distinction between
the condominium or homeowner association fees and special assessments
paid by very-low-, low-, and moderate-income purchasers and those
paid by market purchasers.
d.
The owners of restricted ownership units may apply to the administrative agent to increase the maximum sales price for the unit on the basis of approved capital improvements. Eligible capital improvements shall be those that render the unit suitable for a larger household or the addition of a bathroom. See § 35-8-13, Capital Improvements to Ownership Units.
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, the administrative agent may, upon approval by the
Township Committee, and subject to the Court's approval, permit a
moderate-income purchaser to buy a low-income unit if and only if
the administrative agent can demonstrate that there is an insufficient
number of eligible low-income purchasers in the housing region to
permit prompt occupancy of the unit and all other reasonable efforts
to attract a low-income purchaser, including pricing and financing
incentives, have failed. Any such low-income unit that is sold to
a moderate-income household shall retain the required pricing and
pricing restrictions for a low-income unit.
c.
A certified
household that purchases a restricted ownership unit must occupy it
as the certified household’s principal residence and shall not
lease the unit; provided, however, that the administrative agent may
permit the owner of a restricted ownership unit, upon application
and a showing of hardship, to lease the restricted unit to another
certified household for a period not to exceed one year.
d.
The administrative
agent shall certify a household as eligible for a restricted ownership
unit when the household is a low-income household or a moderate-income
household, as applicable to the unit, and the estimated monthly housing
cost for the particular unit (including principal, interest, taxes,
homeowner and private mortgage insurance and condominium or homeowner
association fees, as applicable) does not exceed 33% of the household’s
eligible monthly income.
a.
Prior
to incurring any indebtedness to be secured by a restricted ownership
unit, the owner shall apply to the administrative agent for a determination
in writing that the proposed indebtedness complies with the provisions
of this section, and the administrative agent shall issue such determination
prior to the owner incurring such indebtedness.
b.
With
the exception of first purchase money mortgages, neither an owner
nor a lender shall at any time cause or permit the total indebtedness
secured by a restricted ownership unit to exceed 95% of the maximum
allowable resale price of the unit, as such price is determined by
the administrative agent in accordance with N.J.A.C.5:80-26.6(b).
a.
The owners
of restricted ownership units may apply to the administrative agent
to increase the maximum sales price for the unit on the basis of capital
improvements made since the purchase of the unit. Eligible capital
improvements shall be those that render the unit suitable for a larger
household or that add an additional bathroom. In no event shall the
maximum sales price of an improved housing unit exceed the limits
of affordability for the larger household.
b.
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 newly constructed restricted rental units shall be in
accordance with N.J.A.C. 5:80-26.11, except as modified by the terms
of the settlement agreement between the Township of Millstone and
Fair Share Housing Center (FSHC), as such settlement agreement may
be further amended and supplemented, and each newly constructed restricted
rental unit shall remain subject to the requirements of this article
for a period of at least 30 years, until Millstone Township takes
action to release the unit from such requirements. Prior to such action,
a restricted rental unit must remain subject to the requirements of
N.J.A.C. 5:80-26.1, except as modified by the terms of the settlement
agreement between the Township of Millstone and Fair Share Housing
Center (FSHC), as such settlement agreement may be further amended
and supplemented.
b.
Deeds
of all real property that include restricted rental units shall contain
deed restriction language. The deed restriction shall have priority
over all mortgages on the property, and the deed restriction shall
be filed by the developer or seller with the records office of the
County of Monmouth. The deed shall also identify each affordable unit
by apartment number and/or address and whether that unit is designated
as a very-low-, low- or moderate-income unit. Neither the unit nor
its affordability designation shall change throughout the term of
the deed restriction. A copy of the filed document shall be provided
to the administrative agent within 30 days of the receipt of a certificate
of occupancy.
c.
A restricted
rental unit shall remain subject to the affordability controls of
this article 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 article.
d.
No rent
control ordinance or other pricing restriction shall be applicable
to either the market units or the affordable units in any development
in which at least 15% of the total number of dwelling units are restricted
rental units in compliance with this article.
All one-hundred-percent affordable projects, including projects
funded through low-income housing tax credits, shall comply with the
Uniform Housing Affordability Controls, N.J.A.C. 5:80-26.1 et seq.,
except as modified by the terms of the settlement agreement executed
between the Township of Millstone and Fair Share Housing Center (FSHC),
as such settlement agreement may be further amended and supplemented.
All such projects shall be required to have an initial thirty-year
affordability control period.
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 the regional median household
income by household size.
2.
Low-income
rental units shall be reserved for households with a gross household
income less than or equal to 50% of the regional median household
income by household size.
3.
Moderate-income
rental units shall be reserved for households with a gross household
income less than 80% of the regional median household income by household
size.
b.
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.
There
is hereby created the position of Municipal Housing Liaison. The Municipal
Housing Liaison shall be responsible for oversight and administration
of the affordable housing program for Millstone Township, including
the following responsibilities which may not be contracted out to
the administrative agent:
1.
Serving
as Millstone Township’s primary point of contact for all inquiries
from the state, affordable housing providers, administrative agents
and interested households;
2.
Monitoring
the status of all restricted units in Millstone Township’s Fair
Share Plan;
3.
Compiling,
verifying, submitting and posting all monitoring reports as required
by the Court and by this article;
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.
b.
The Township
of Millstone shall appoint a specific municipal employee to serve
as a Municipal Housing Liaison responsible for overseeing the Township's
affordable housing program, including overseeing the administration
of affordability controls on the affordable units and the affirmative
marketing of available affordable units in accordance with the Township's
Affirmative Marketing Plan; fulfilling monitoring and reporting requirements;
and supervising administrative agent(s). Millstone Township shall
adopt a resolution appointing the person to fulfill the position of
Municipal Housing Liaison. The Municipal Housing Liaison shall be
appointed by the governing body and may be a full- or part-time municipal
employee.
c.
Subject
to the approval of the Court, the Township of Millstone shall designate
one or more administrative agent(s) to administer and to affirmatively
market the affordable units constructed in the Township in accordance
with this article and UHAC. An operating manual for each affordable
housing program shall be provided by the administrative agent(s) to
be adopted by resolution of the governing body and subject to approval
of the court. The operating manual(s) shall be available for public
inspection in the office of the Township Clerk, in the office of the
municipal housing liaison, and in the office(s) of the administrative
agent(s). The Municipal Housing Liaison shall supervise the work of
the administrative agent(s).
An administrative agent may either be an independent entity
serving under contract to and reporting to the municipality, or the
municipality itself, through a designated municipal employee, department,
board, agency or committee, pursuant to N.J.A.C. 5:80-26.14(c). The
fees of the administrative agent shall be paid by the owners of the
affordable units for which the services of the administrative agent
are required. The administrative agent shall be qualified through
a training program sponsored by the Affordable Housing Professionals
of New Jersey before assuming the duties. 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, 16 and 18 thereof, which includes:
a.
Affirmative
Marketing:
1.
Conducting
an outreach process to affirmatively market affordable housing units
in accordance with the Affirmative Marketing Plan of the Township
of Millstone and the provisions of N.J.A.C. 5:80-26.15; and
2.
Providing
counseling or contracting to provide counseling services to very-low-,
low- and moderate-income applicants on subjects such as budgeting,
credit issues, mortgage qualification, rental lease requirements,
and landlord/tenant law.
b.
Household
Certification:
1.
Soliciting,
scheduling, conducting and following up on interviews with interested
households;
2.
Conducting
interviews and obtaining sufficient documentation of gross income
and assets upon which to base a determination of income eligibility
for a low- or moderate-income unit;
3.
Providing
written notification to each applicant as to the determination of
eligibility or noneligibility;
4.
Requiring
that all certified applicants for restricted units execute a certificate
substantially in the form, as applicable, of either the ownership
or rental certificates set forth in Appendices J and K of N.J.A.C.
5:80-26.1 et seq.;
5.
Creating
and maintaining a referral list of eligible applicant households living
in the housing region and eligible applicant households with members
working in the housing region where the units are located;
6.
Employing
a random selection process as provided in the Affirmative Marketing
Plan of the Township of Millstone when referring households for certification
to affordable units; and
7.
Notifying
the following entities of the availability of affordable housing units
in the Township of Millstone: Fair Share Housing Center; the New Jersey
State Conference of the NAACP; the Latino Action Network; and the
Supportive Housing Association.
c.
Affordability
Controls:
1.
Furnishing
to attorneys or closing agents forms of deed restrictions and mortgages
for recording at the time of conveyance of title of each restricted
unit;
2.
Creating
and maintaining a file on each restricted unit for its control period,
including the recorded deed with restrictions, recorded mortgage and
note, as appropriate;
3.
Ensuring
that the removal of the deed restrictions and cancellation of the
mortgage note are effectuated and properly filed with the Monmouth
County Register of Deeds or Monmouth County Clerk’s office after
the termination of the affordability controls for each restricted
unit;
4.
Communicating
with lenders regarding foreclosures; and
5.
Ensuring
the issuance of continuing certificates of occupancy or certifications
pursuant to N.J.A.C. 5:80-26.10.
d.
Resales
and Rerentals:
1.
Instituting
and maintaining an effective means of communicating information between
owners and the administrative agent regarding the availability of
restricted units for resale or rerental; and
2.
Instituting
and maintaining an effective means of communicating information to
low- (or very-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 article;
2.
Reviewing
and approving requests to increase sales prices from owners of restricted
units who wish to make capital improvements to the units that would
affect the selling price, such authorizations to be limited to those
improvements resulting in additional bedrooms or bathrooms and the
depreciated cost of central air conditioning systems;
3.
Notifying
the municipality of an owner’s intent to sell a restricted unit;
and
4.
Making
determinations on requests by owners of restricted units for hardship
waivers.
f.
Enforcement:
1.
Securing
annually from the municipality a list of all affordable housing units
for which tax bills are mailed to absentee owners, and notifying all
such owners that they must either move back to their unit or sell
it;
2.
Securing
from all developers and sponsors of restricted units, at the earliest
point of contact in the processing of the project or development,
written acknowledgement of the requirement that no restricted unit
can be offered, or in any other way committed, to any person, other
than a household duly certified to the unit by the administrative
agent;
3.
Posting
annually, in all rental properties (including two-family homes), a
notice as to the maximum permitted rent together with the telephone
number of the administrative agent where complaints of excess rent
or other charges can be made;
4.
Sending
annual mailings to all owners of affordable dwelling units, reminding
them of the notices and requirements outlined in N.J.A.C. 5:80-26.18(d)4;
5.
Establishing
a program for diverting unlawful rent payments to the municipality's
Affordable Housing Trust Fund; and
6.
Creating
and publishing a written operating manual for each affordable housing
program administered by the administrative agent, to be approved by
the Township Committee and the Court, setting forth procedures for
administering the affordability controls. The operating manual(s)
shall be available for public inspection in the office of the Township
Clerk, in the office of the Municipal Housing Liaison, and in the
office(s) of the administrative agent(s).
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 the Court-approved
monitoring and reporting requirements in accordance with the deadlines
set forth in this article.
3.
The
administrative agent shall attend continuing education sessions on
affordability controls, compliance monitoring, and affirmative marketing
at least annually and more often as needed.
a.
The Township
of Millstone 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.
It is a continuing program that directs marketing activities toward
Housing Region 4 and is required to be followed throughout the period
of restriction.
c.
The Affirmative
Marketing Plan shall provide a regional preference for all households
that live and/or work in Housing Region 4, comprising Mercer, Monmouth,
and Ocean Counties.
d.
The municipality
has the ultimate responsibility for adopting the Affirmative Marketing
Plan and for the proper administration of the Affirmative Marketing
Program, including initial sales and rentals and resales and rerentals.
The administrative agent designated by the Township of Millstone shall
implement the Affirmative Marketing Plan to assure the affirmative
marketing of all affordable units.
e.
In implementing
the Affirmative Marketing Plan, the administrative agent shall provide
a list of counseling services to very-low-, low- and moderate-income
applicants on subjects such as budgeting, credit issues, mortgage
qualification, rental lease requirements, and landlord/tenant law.
f.
The Affirmative
Marketing Plan shall describe the media to be used in advertising
and publicizing the availability of housing. In implementing the Affirmative
Marketing Plan, the administrative agent shall consider the use of
language translations where appropriate.
g.
The affirmative
marketing process for available affordable units shall begin at least
four months (120 days) prior to the expected date of occupancy.
h.
Applications
for affordable housing shall be available in several locations, including,
at a minimum, the County Administration Building and/or the County
Library for each county within the housing region; the municipal administration
building and the municipal library in the municipality in which the
units are located; and the developer's rental office. Applications
shall be mailed to prospective applicants upon request.
i.
In addition
to other affirmative marketing strategies, the administrative agent
shall provide specific notice of the availability of affordable housing
units in Millstone Township, and copies of the application forms,
to the following entities: Fair Share Housing Center; the New Jersey
State Conference of the NAACP; the Latino Action Network; and the
Supportive Housing Association.
j.
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 an
affordable unit by an owner, developer or tenant, the municipality
shall have all remedies provided at law or equity, including but not
limited to foreclosure, tenant eviction, a requirement for household
recertification, acceleration of all sums due under a mortgage, recuperation
of any funds from a sale in violation of the regulations, injunctive
relief to prevent further violation of the regulations, entry on the
premises, and specific performance.
b.
After
providing written notice of a violation to an owner, developer or
tenant of a low- or moderate-income unit and advising the owner, developer
or tenant of the penalties for such violations, the municipality may
take the following action(s) against the owner, developer or tenant
for any violation that remains uncured for a period of 60 days after
service of the written notice:
1.
The
municipality may file a court action pursuant to N.J.S.A. 2A:58-11
alleging a violation or violations of the regulations governing the
affordable housing unit. If the owner, developer or tenant is adjudged
by the Court to have violated any provision of the regulations governing
affordable housing units, the owner, developer or tenant shall be
subject to one or more of the following penalties, at the discretion
of the Court:
(a)
A fine of not more than $500 per day or imprisonment for a period
not to exceed 90 days, or both, provided that each and every day that
the violation continues or exists shall be considered a separate and
specific violation of these provisions and not a continuation of the
initial offense;
(b)
In the case of an owner who has rented a very-low-, low- or moderate-income
unit in violation of the regulations governing affordable housing
units, payment into the Township of Millstone Affordable Housing Trust
Fund of the gross amount of rent illegally collected;
(c)
In the case of an owner who has rented a very-low-, low- or moderate-income
unit in violation of the regulations governing affordable housing
units, payment of an innocent tenant's reasonable relocation costs,
as determined by the Court.
2.
The
municipality may file a court action in the Superior Court seeking
a judgment that would result in the termination of the owner's equity
or other interest in the unit, in the nature of a mortgage foreclosure.
Any such judgment shall be enforceable as if the same were a judgment
of default of the first purchase money mortgage and shall constitute
a lien against the low- or moderate-income unit.
(a)
The judgment shall be enforceable, at the option of the municipality,
by means of an execution sale by the Sheriff, at which time the very-low-,
low-, and moderate-income unit of the violating owner shall be sold
at a sale price which is not less than the amount necessary to fully
satisfy and pay off any first purchase money mortgage and prior liens
and the costs of the enforcement proceedings incurred by the municipality,
including attorney's fees. The violating owner shall have 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
very-low-, low-, and moderate-income unit. The excess, if any, shall
be applied to reimburse the municipality for any and all costs and
expenses incurred in connection with either the court action resulting
in the judgment of violation or the Sheriff's sale. In the event that
the proceeds from the Sheriff's sale are insufficient to reimburse
the municipality in full as aforesaid, the violating owner shall be
personally responsible for the full extent of such deficiency, in
addition to any and all costs incurred by the municipality in connection
with collecting such deficiency. In the event that a surplus remains
after satisfying all of the above, such surplus, if any, shall be
placed in escrow by the municipality for the owner and shall be held
in such escrow for a maximum period of two years or until such earlier
time as the owner shall make a claim with the municipality for such.
Failure of the owner to claim such balance within the two-year period
shall automatically result in a forfeiture of such balance to the
municipality. Any interest accrued or earned on such balance while
being held in escrow shall belong to and shall be paid to the municipality,
whether such balance shall be paid to the owner or forfeited to the
municipality.
(c)
Foreclosure by the municipality due to violation of the regulations
governing affordable housing units shall not extinguish the restrictions
of the regulations governing affordable housing units as the same
apply to the very-low-, low- and moderate-income unit. Title shall
be conveyed to the purchaser at the Sheriff's sale, subject to the
restrictions and provisions of the regulations governing the affordable
housing unit. The owner determined to be in violation of the provisions
of this plan and from whom title and possession were taken by means
of the Sheriff's sale shall not be entitled to any right of redemption.
(d)
If there are no bidders at the Sheriff's sale, or if insufficient
amounts are bid to satisfy the first purchase money mortgage and any
prior liens, the municipality may acquire title to the very-low-,
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 very-low-,
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 very-low-, low-, and moderate-income unit to be either
sold at the Sheriff's sale or acquired by the municipality shall obligate
the owner to accept an offer to purchase from any qualified purchaser
which may be referred to the owner by the municipality, with such
offer to purchase being equal to the maximum resale price of the very-low-,
low-, and moderate-income unit as permitted by the regulations governing
affordable housing units.
(f)
The owner shall remain fully obligated, responsible and liable for
complying with the terms and restrictions of governing affordable
housing units until such time as title is conveyed from the owner.
a.
In
Holmdel Builder’s Association v. Holmdel Township, 121 N.J.
550 (1990), the New Jersey Supreme Court determined that mandatory
development fees are authorized by the Fair Housing Act of 1985, N.J.S.A.
52:27d-301 et seq., and the State Constitution, subject to the adoption
of Rules by the Council on Affordable Housing (COAH).
b.
Pursuant
to P.L. 2008, c. 46, Section 8 (N.J.S.A. 52:27D-329.2) and the Statewide
Non-Residential Development Fee Act (N.J.S.A. 40:55D-8.1 through 8.7),
COAH was authorized to adopt and promulgate regulations necessary
for the establishment, implementation, review, monitoring and enforcement
of municipal affordable housing trust funds and corresponding spending
plans. Municipalities that were under the jurisdiction of COAH and
that are now before a court of competent jurisdiction and have a Court-approved
spending plan may retain fees collected from nonresidential development.
c.
This
section establishes standards for the collection, maintenance, and
expenditure of development fees that are consistent with COAH’s
regulations developed in response to P.L. 2008, c. 46, Sections 8
and 32-38 (N.J.S.A. 52:27D-329.2) and the Statewide Non-Residential
Development Fee Act (N.J.S.A. 40:55D-8.1 through 8.7). Fees collected
pursuant to this section shall be used for the sole purpose of providing
low- and moderate-income housing in accordance with a Court-approved
spending plan.
a.
Imposition
of Fees.
1.
Within
the Township of Millstone, all residential developers, except for
developers of the types of developments specifically exempted below
and developers of developments that include affordable housing, shall
pay a fee of 1.5% of the equalized assessed value for all new residential
development provided no increased density is permitted.
2.
When
an increase in residential density is permitted pursuant to a "d"
variance granted under N.J.S.A. 40:55D-70d(5), developers shall be
required to pay a bonus development fee of 6% of the equalized assessed
value for each additional unit that may be realized, except that this
provision shall not be applicable to a development that will include
affordable housing. If the zoning on a site has changed during the
two-year period preceding the filing of such a variance application,
the base density for the purposes of calculating the bonus development
fee shall be the highest density permitted by right during the two-year
period preceding the filing of the variance application.
3.
Development
fees shall be imposed and collected when an existing structure undergoes
a change to a more intense use, is demolished and replaced, or is
expanded, if the expansion is not otherwise exempt from the development
fee requirement. The development fee shall be calculated on the increase
in the equalized assessed value of the improved structure.
b.
Eligible
Exactions, Ineligible Exactions and Exemptions for Residential Developments.
1.
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.
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. 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. The fee percentage shall be vested
on the date that the building permit is issued. Developments that
received approval under the predecessor Development Fee Ordinance
shall be responsible for payment of fees pursuant to the requirements
of that ordinance.
3.
Developers
of educational facilities shall be exempt from paying a development
fee.
4.
Developers
of houses of worship and other uses that are entitled to exemption
from New Jersey real property tax shall be exempt from the payment
of a development fee, provided that such development does not result
in the construction of any additional housing or residential units,
including assisted living and continuing care retirement communities.
5.
A
development shall be exempt from an increase in the percentage of
the development fee, provided the building permit was issued prior
to the effective date of this article, or prior to any subsequent
ordinance increasing the fee percentage. The developer shall have
the right to pay the fee based on the percentage in effect on the
date the building permit was issued.
6.
Any
development or improvement to structures of owner-occupied property
in which there is located an affordable accessory residence. This
exemption shall only apply to development or improvements to the property
during the period of affordability controls.
7.
The
construction of a new accessory building or other structure on the
same lot as the principal building shall be exempt from the imposition
of development fees if the assessed value of the structure is determined
to be less than $100,000.
a.
Imposition
of Fees.
1.
Within
all zoning districts, nonresidential developers, except for developers
of the types of developments specifically exempted below, shall pay
a fee equal to 2.5% of the equalized assessed value of the land and
improvements, for all new nonresidential construction on an unimproved
lot or lots.
2.
Within
all zoning districts, nonresidential developers, except for developers
of the types of developments specifically exempted below, 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 improvements and the equalized assessed value of the newly
improved structure, i.e., land and improvements, and such calculation
shall be made at the time a final certificate of occupancy is issued.
If the calculation required under this section results in a negative
number, the nonresidential development fee shall be zero.
4.
The
nonresidential portion of a mixed-use inclusionary or market rate
development shall be subject to the development fee of 2.5% unless
otherwise exempted below.
b.
Eligible
Exactions, Ineligible Exactions and Exemptions for Nonresidential
Development.
1.
The
development fee of 2.5% shall not apply to an increase in equalized
assessed value resulting from alterations, change in use within the
existing footprint, reconstruction, renovations and repairs.
2.
Nonresidential
developments shall be exempt from the payment of nonresidential development
fees in accordance with the exemptions required pursuant to the Statewide
Non-Residential Development Fee Act (N.J.S.A. 40:55D-8.1 through 8.7),
as specified in Form N-RDF, "State of New Jersey Non-Residential Development
Certification/Exemption." Any exemption claimed by a developer shall
be substantiated by that developer.
3.
A
developer of a nonresidential development exempted from the nonresidential
development fee pursuant to the Statewide Non-Residential Development
Fee Act shall be subject to the fee at such time as 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 for the nonresidential development, whichever is later.
4.
If
a property which was exempted from the collection of a nonresidential
development fee thereafter ceases to be exempt from property taxation,
the owner of the property shall remit the fees required pursuant to
this section within 45 days of the termination of the property tax
exemption. Unpaid nonresidential development fees under these circumstances
may be enforceable by the Township of Millstone as a lien against
the real property of the owner.
5.
Pursuant
to P.L. 2009, c. 90 and P.L.2011, c. 122, the nonresidential statewide
development fee of 2.5% for nonresidential development is suspended
for all nonresidential projects that received preliminary or final
site plan approval subsequent to July 17, 2008, until July 1, 2013,
provided that a permit for the construction of the building has been
issued prior to January 1, 2015.
a.
Upon
the granting of a preliminary, final or other applicable approval
for a development, the approving authority or entity shall notify
or direct its staff to notify the Construction Official responsible
for the issuance of a construction permit.
b.
For
nonresidential developments only, the developer shall also be provided
with a copy of Form N-RDF, “State of New Jersey Non-Residential
Development Certification/ Exemption,” to be completed as per
the instructions provided. The developer of a nonresidential development
shall complete Form N-RDF as per the instructions provided. The Construction
Official shall verify the information submitted by the nonresidential
developer as per the instructions provided in 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.
c.
The
Construction Official responsible for the issuance of a construction
permit shall notify the Township Tax Assessor of the issuance of the
first construction permit for a development which is subject to a
development fee.
d.
Within
90 days of receipt of such notification, the Township Tax Assessor
shall prepare an estimate of the equalized assessed value of the development
based on the plans filed.
e.
The
Construction Official responsible for the issuance of a final certificate
of occupancy shall notify the Township Tax Assessor of any and all
requests for the scheduling of a final inspection on a property which
is subject to a development fee.
f.
Within
10 business days of a request for the scheduling of a final inspection,
the Township Tax Assessor shall confirm or modify the previously estimated
equalized assessed value of the improvements associated with the development;
calculate the development fee; and thereafter notify the developer
of the amount of the fee.
g.
Should the Township of Millstone 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).
h.
Except
as provided in hereinabove, 50% of the initially calculated development
fee shall be collected at the time of issuance of the construction
permit. The remaining portion shall be collected at the time of issuance
of the certificate of occupancy. The developer shall be responsible
for paying the difference between the fee calculated at the time of
issuance of the construction permit and that determined at the time
of issuance of the certificate of occupancy.
i.
Appeal
of Development Fees
1.
A
developer may challenge residential development fees imposed by filing
a challenge with the County Board of Taxation. Pending a review and
determination by the Board, collected fees shall be placed in an interest-bearing
escrow account by the Township of Millstone. Appeals from a determination
of the Board may be made to the tax court in accordance with the provisions
of the State Tax Uniform Procedure Law, N.J.S.A. 54:48-1, et seq.,
within 90 days after the date of such determination. Interest earned
on amounts escrowed shall be credited to the prevailing party.
2.
A
developer may challenge nonresidential development fees imposed by
filing a challenge with the Director of the Division of Taxation.
Pending a review and determination by the Director, which shall be
made within 45 days of receipt of the challenge, collected fees shall
be placed in an interest-bearing escrow account by the Township of
Millstone. Appeals from a determination of the Director may be made
to the tax court in accordance with the provisions of the State Tax
Uniform Procedure Law, N.J.S.A. 54:48-1 et seq., within 90 days after
the date of such determination. Interest earned on amounts escrowed
shall be credited to the prevailing party.
a.
There
is hereby created a separate, interest-bearing Affordable Housing
Trust Fund to be maintained by the Chief Financial Officer of Township
of Millstone for the purpose of depositing development fees collected
from residential and nonresidential developers and proceeds from the
sale of units with extinguished controls.
b.
The
following additional funds shall be deposited in the Affordable Housing
Trust Fund and shall at all times be identifiable by source and amount:
1.
Payments
in lieu of on-site construction of a fraction of an affordable unit,
where permitted by ordinance or by agreement with the Township of
Millstone;
2.
Funds
contributed by developers to make 10% of the adaptable entrances in
a townhouse or other multistory attached dwelling unit 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 Millstone Township’s
affordable housing program.
c.
In
the event of a failure by the Township of Millstone to comply with
trust fund monitoring and reporting requirements or to submit accurate
monitoring reports; or a failure to comply with the conditions of
the judgment of compliance or a revocation of the judgment of compliance;
or a failure to implement the approved spending plan and to expend
funds within the applicable required time period as set forth in In
re Tp. of Monroe, 442 N.J. Super. 565 (Law Div. 2015) (aff'd 442 N.J.
Super. 563); or the expenditure of funds on activities not approved
by the Court; or for other good cause demonstrating the unapproved
use(s) of funds, the Court may authorize the State of New Jersey,
Department of Community Affairs, Division of Local Government Services
(LGS), to direct the manner in which the funds in the Affordable Housing
Trust Fund shall be expended, provided that all such funds shall,
to the extent practicable, be utilized for affordable housing programs
within the Township of Millstone, or, if not practicable, then within
the county or the housing region.
1.
Any
party may bring a motion before the Superior Court presenting evidence
of such condition(s), and the Court may, after considering the evidence
and providing the municipality a reasonable opportunity to respond
and/or to remedy the noncompliant condition(s), and upon a finding
of continuing and deliberate noncompliance, determine to authorize
LGS to direct the expenditure of funds in the Trust Fund. The Court
may also impose such other remedies as may be reasonable and appropriate
to the circumstances.
d.
Interest
accrued in the Affordable Housing Trust Fund shall only be used to
fund eligible affordable housing activities approved by the Court.
a.
The
expenditure of all funds shall conform to a spending plan approved
by the Court. Funds deposited in the Affordable Housing Trust Fund
may be used for any activity approved by the Court to address the
Township of Millstone’s fair share obligation and may be set
up as a grant or revolving loan program. Such activities include,
but are not limited to, preservation or purchase of housing for the
purpose of maintaining or implementing affordability controls; housing
rehabilitation; new construction of affordable housing units and related
costs; accessory apartments; a market to affordable program; Regional
Housing Partnership programs; conversion of existing nonresidential
buildings to create new affordable units; green building strategies
designed to be cost saving and in accordance with accepted national
or state standards; purchase of land for affordable housing; improvement
of land to be used for affordable housing; extensions or improvements
of roads and infrastructure to affordable housing sites; financial
assistance designed to increase affordability; administration necessary
for implementation of the Housing Element and Fair Share Plan; and/or
any other activity permitted by the Court and specified in the approved
spending plan.
b.
Funds
shall not be expended to reimburse the Township of Millstone for past
housing activities.
c.
At
least 30% of all development fees collected, and interest earned on
such fees, 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 the median income
for Housing Region 4, in which Millstone Township is located.
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. The specific programs to be
used for affordability assistance shall be identified and described
within the spending plan.
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. The specific programs to be used for
very-low-income affordability assistance shall be identified and described
within the spending plan.
3.
Payments
in lieu of constructing affordable housing units on site, if permitted
by ordinance or by agreement with the Township of Millstone, and funds
from the sale of units with extinguished controls shall be exempt
from the affordability assistance requirement.
d.
The
Township of Millstone may contract with a private or public entity
to administer any part of its Housing Element and Fair Share Plan,
including its programs for affordability assistance.
e.
No
more than 20% of all revenues collected from development fees may
be expended on administration, including, but not limited to, salaries
and benefits for municipal employees or consultants' fees necessary
to develop or implement a new construction program, prepare a Housing
Element and Fair Share Plan, and/or administer an affirmative marketing
program or a rehabilitation program.
1.
In
the case of a rehabilitation program, the administrative costs of
the rehabilitation program shall be included as part of the 20%'of
collected development fees that may be expended on administration.
2.
Administrative
funds may be used for income qualification of households, monitoring
the turnover of sale and rental units, and compliance with COAH's
monitoring requirements. Legal or other fees related to litigation
opposing affordable housing sites or related to securing or appealing
a judgment from the Court are not eligible uses of the Affordable
Housing Trust Fund.
The Township of Millstone shall provide annual reporting of
Affordable Housing Trust Fund activity to the State of New Jersey,
Department of Community Affairs, Council on Affordable Housing or
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 Local Government Services. The reporting shall include
an accounting of all Affordable Housing Trust Fund activity, including
the sources and amounts of funds collected and the amounts and purposes
for which any funds have been expended. Such reporting shall include
an accounting of development fees collected from residential and nonresidential
developers, payments in lieu of constructing affordable units on site
(if permitted by ordinance or by agreement with the Township), funds
from the sale of units with extinguished controls, barrier-free escrow
funds, rental income from Township-owned affordable housing units,
repayments from affordable housing program loans, and any other funds
collected in connection with Millstone Township's affordable housing
programs, as well as an accounting of the expenditures of revenues
and implementation of the spending plan approved by the Court.
a.
The
ability for the Township of Millstone to impose, collect and expend
development fees shall expire with the expiration of the repose period
covered by its judgment of compliance unless the Township of Millstone
has first filed an adopted Housing Element and Fair Share Plan with
the Court or with a designated state administrative agency, has petitioned
for a judgment of compliance from the Court or for substantive certification
or its equivalent from a state administrative agency authorized to
approve and administer municipal affordable housing compliance and
has received approval of its Development Fee Ordinance from the entity
that will be reviewing and approving the Housing Element and Fair
Share Plan.
b.
If
the Township of Millstone fails to renew its ability to impose and
collect development fees prior to the expiration of its judgment of
compliance, it may be subject to forfeiture of any or all funds remaining
within its Affordable Housing Trust Fund. Any funds so forfeited shall
be deposited into the New Jersey Affordable Housing Trust Fund established
pursuant to Section 20 of P.L. 1985, c. 222 (N.J.S.A. 52:27D-320).
c.
The
Township of Millstone shall not impose a residential development fee
on a development that receives preliminary or final site plan approval
after the expiration of its judgment of compliance, nor shall the
Township of Millstone retroactively impose a development fee on such
a development. The Township of Millstone also shall not expend any
of its collected development fees after the expiration of its judgment
of compliance.
Appeals from all decisions of an administrative agent appointed
pursuant to this article shall be filed in writing with the Court.
