[Ord. No. 2009-16; amended 4-3-2018 by Ord. No. 02-2018]
The Borough of Farmingdale shall comply with the following monitoring
and reporting requirements regarding the status of the implementation
of its Court-approved Housing Element and Fair Share Plan:
a.
Beginning
on February 1, 2019, and on every anniversary of that date through
February 1, 2025, the Borough agrees to 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 February 1, 2019, and on every anniversary of that date through
February 1, 2025, the Borough agrees to provide annual reporting of
the status of all affordable housing activity within the Borough through
posting on the municipal website with a copy of such posting provided
to Fair Share Housing Center, using forms previously developed for
this purpose by 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 Borough
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 Borough, 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 March
1, 2020, and every third year thereafter, as required by N.J.S.A.
52:27D-329.1, the Borough 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 Borough and FSHC on the issue of whether the Borough
has complied with its very-low-income and family-very-low-income housing
obligations.
The following terms when used in this section shall have the
meanings given in this section:
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 Borough to administer affordable
units in accordance with this section, 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 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 Borough'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 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.
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.
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.
a.
The provisions
of this section shall apply to all affordable housing developments
and affordable housing units that currently exist and that are proposed
to be created within the Borough of Farmingdale pursuant to the Borough's
most recently adopted Housing Element and Fair Share Plan.
b.
Moreover,
this section shall apply to all developments that contain low- and
moderate-income housing units, including any currently unanticipated
future developments that will provide low- and moderate-income housing
units.
c.
Any property
in the Borough of Farmingdale that is currently zoned for nonresidential
uses and subsequently receives a zoning change or use variance or
approval of a redevelopment plan to permit residential development,
or that is currently zoned for residential uses and receives a zoning
change or density variance or approval of a redevelopment plan to
permit higher density residential development, provided such density
is at least twice the density previously permitted, shall provide
an affordable housing set-aside of 15% if the affordable units will
be for rent and 20% if the affordable units will be for sale. No property
shall be subdivided so as to avoid compliance with this requirement.
Moreover, this provision governs municipal actions and shall not entitle
any property owner or developer to such action by the Borough. All
affordable units created pursuant to this subsection shall be governed
by the provisions of this chapter.
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 shall be
followed:
|
Maximum Percentage of Market-Rate Units Completed
|
Minimum Percentage of Low- and Moderate-Income Units Completed
|
|---|---|
|
25%
|
0%
|
|
25% +1
|
10%
|
|
50%
|
50%
|
|
75%
|
75%
|
|
90%
|
100%
|
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 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.
In each
affordable development, at least 50% of the restricted units within
each bedroom distribution shall be very-low- or low-income units.
3.
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.
4.
Affordable
developments that are age-restricted shall be structured such that
the number of bedrooms shall equal the number of age-restricted low-
and moderate-income units within the inclusionary development. This
standard may be met by having all one-bedroom units or by having a
two-bedroom unit for each efficiency unit.
b.
Accessibility
Requirements:
1.
The first
floor of all restricted townhouse dwelling units and all restricted
units in all other multistory buildings shall be subject to the technical
design standards of the Barrier Free SubCode, N.J.A.C. 5:23-7 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 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,
or evidence that Farmingdale 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 Borough of Farmingdale'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 Borough of Farmingdale 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 Borough of Farmingdale
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, 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 Treasurer who shall ensure that the funds are deposited
into the Affordable Housing Trust Fund and appropriately earmarked.
(6)
Full compliance with the foregoing provisions shall not be required
where an entity can demonstrate that it is "site impracticable" to
meet the requirements. Determinations of site impracticability shall
be in compliance with the Barrier Free Subcode, N.J.A.C. 5:23-7.
c.
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.
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 the calculation procedures
set forth in the consent order entered on December 16, 2016, by the
Honorable Douglas K. Wolfson, JSC, in In the Matter of the Township
of East Brunswick for a Judgment of Compliance of its Third Round
Housing Element and Fair Share Plan, Docket No.: MID-L-004013-15.
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:
7.
The initial
purchase price for all restricted ownership units shall be calculated
so that the monthly carrying cost of the unit, including principal
and interest (based on a mortgage loan equal to 95% of the purchase
price and the Federal Reserve H.15 rate of interest), taxes, homeowner
and private mortgage insurance and condominium or homeowner association
fees do not exceed 28% of the eligible monthly income of the appropriate
size household as determined under N.J.A.C. 5:80-26.4, as may be amended
and supplemented; provided, however, that the price shall be subject
to the affordability average requirement of N.J.A.C. 5:80-26.3, as
may be amended and supplemented.
8.
The initial
rent for a restricted rental unit shall be calculated so as not to
exceed 30% of the eligible monthly income of the appropriate size
household, including an allowance for tenant paid utilities, as determined
under N.J.A.C. 5:80-26.4, as may be amended and supplemented; provided,
however, that the rent shall be subject to the affordability average
requirement of N.J.A.C. 5:80-26.3, as may be amended and supplemented.
9.
The price
of owner-occupied low- and moderate-income units may increase annually
based on the percentage increase in the regional median income limit
for each housing region. In no event shall the maximum resale price
established by the Administrative Agent be lower than the last recorded
purchase price.
10.
The
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 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 section
for a period of at least 30 years, until Farmingdale 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, 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 section, 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 section 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.
a.
Price
restrictions for restricted ownership units shall be in accordance
with N.J.A.C. 5:80-26.1, as may be amended and supplemented, including:
1.
The
initial purchase price for a restricted ownership unit shall be approved
by the Administrative Agent.
2.
The
Administrative Agent shall approve all resale prices, in writing and
in advance of the resale, to assure compliance with the foregoing
standards.
3.
The
master deeds of inclusionary developments shall provide no distinction
between the condominium or homeowner association fees and special
assessments paid by low- and moderate-income purchasers and those
paid by market purchasers.
4.
The
owners of restricted ownership units may apply to the Administrative
Agent to increase the maximum sales price for the unit on the basis
of anticipated capital improvements. Eligible capital improvements
shall be those that render the unit suitable for a larger household
or the addition of a bathroom. See § 27- 1.13.
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
Borough Council, 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.
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 section
for a period of at least 30 years, until Farmingdale 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, as may be amended and supplemented.
b.
Deeds
of all real property that include restricted rental units shall contain
deed restriction language. The deed restriction shall have priority
over all mortgages on the property, and the deed restriction shall
be filed by the developer or seller with the records office of the
County of Monmouth. 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 section 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 section.
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 section.
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.
The Borough
of Farmingdale shall appoint a specific municipal employee to serve
as a Municipal Housing Liaison responsible for overseeing the Borough'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 Borough's
Affirmative Marketing Plan; fulfilling monitoring and reporting requirements;
and supervising Administrative Agent(s). Farmingdale shall adopt an
ordinance creating the position of Municipal Housing Liaison and 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.
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 Farmingdale, including the following
responsibilities which may not be contracted out to the Administrative
Agent:
1.
Serving
as Farmingdale'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 Farmingdale's Fair Share Plan;
3.
Compiling,
verifying, submitting and posting all monitoring reports as required
by the Court and by this section;
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 of Farmingdale shall designate
one or more Administrative Agent(s) to administer and to affirmatively
market the affordable units constructed in the Borough in accordance
with UHAC and this section. 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 work of
the Administrative Agent(s).
An Administrative Agent shall be an independent entity serving
under contract to and reporting to the Borough. 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 perform the duties and responsibilities of an Administrative
Agent as set forth in UHAC, including those set forth in Sections
5:80-26.14, 16 and 18 thereof, which includes:
a.
Affirmative
Marketing:
1.
Conducting
an outreach process to affirmatively market affordable housing units
in accordance with the Affirmative Marketing Plan of the Borough of
Farmingdale 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 of Farmingdale 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 Farmingdale: Fair Share Housing Center (Cherry Hill);
Latino Action Network (Freehold N.J.); STEPS Conference; OCEAN Inc.;
Supportive Housing Association; New Jersey State Conference of the
NAACP; NAACP Long Branch Unit; NAACP Lakewood Branch Unit; NAACP Trenton
Branch Unit; NAACP Bayshore (Matawan) Branch Unit; NAACP Red Bank
Unit; NAACP Toms River Branch Unit; and, NAACP Asbury Park/Neptune
Branch Unit.
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 0ccupancy 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 section;
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), 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 Borough 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 the Court-approved
monitoring and reporting requirements in accordance with the deadlines
set forth in this section.
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
of Farmingdale 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, comprised of Monmouth,
Mercer and Ocean Counties.
d.
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 of Farmingdale
shall implement the Affirmative Marketing Plan to assure the affirmative
marketing of all affordable units.
e.
In implementing
the Affirmative Marketing Plan, the Administrative Agent shall provide
a list of counseling services to low- and moderate-income applicants
on subjects such as budgeting, credit issues, mortgage qualification,
rental lease requirements, and landlord/tenant law.
f.
The Affirmative
Marketing Plan shall describe the media to be used in advertising
and publicizing the availability of housing. In implementing the Affirmative
Marketing Plan, the Administrative Agent shall consider the use of
language translations where appropriate.
g.
The affirmative
marketing process for available affordable units shall begin at least
four months (120 days) prior to the expected date of occupancy.
h.
Applications
for affordable housing shall be available in several locations, including,
at a minimum, the County Administration Building and/or the County
Library for each county within the housing region; Farmingdale Borough
Hall; 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 Farmingdale, and copies of the application forms, to the
following entities: Fair Share Housing Center (Cherry Hill); Latino
Action Network (Freehold N.J.); STEPS Conference; OCEAN Inc.; Supportive
Housing Association; New Jersey State Conference of the NAACP; NAACP
Long Branch Unit; NAACP Lakewood Branch Unit; NAACP Trenton Branch
Unit; NAACP Bayshore (Matawan) Branch Unit; NAACP Red Bank Unit; NAACP
Toms River Branch Unit; and, NAACP Asbury Park/Neptune Branch Unit.
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 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 of Farmingdale 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.
a.
Purpose.
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
very-low-, low- and moderate-income housing in accordance with a Court-approved
spending plan.
c.
AFFORDABLE HOUSING DEVELOPMENT
COAH or THE COUNCIL
DEVELOPMENT FEE
DEVELOPER
EQUALIZED ASSESSED VALUE
GREEN BUILDING STRATEGIES
Definitions.
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-percent affordable housing
development.
The New Jersey Council on Affordable Housing established
under the Fair Housing Act.
Money paid by a developer for the improvement of property
as authorized by Holmdel Builder's Association v. Holmdel Township,
121 N.J. 550 (1990) and the Fair Housing Act of 1985, N.J.S.A. 52:27d-
301 et seq., and regulated by applicable COAH Rules.
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.
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 N.J.S.A. 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 while making optimum use of existing infrastructure and community
services.
d.
Residential
Development Fees.
1.
Imposition
of Fees.
(a)
Within the Borough of Farmingdale, 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.
Development fees shall also be imposed and collected when an additional
dwelling unit is added to an existing residential structure; in such
cases, the fee shall be calculated based on the increase in the equalized
assessed value of the property due to the additional dwelling unit.
(b)
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.
2.
Eligible
Exactions, Ineligible Exactions and Exemptions for Residential Developments.
(a)
Affordable housing developments and/or developments where the developer
has made a payment in lieu of on-site construction of affordable units,
if permitted by ordinance or by agreement with the Borough of Farmingdale,
shall be exempt from the payment of development fees.
(b)
Developments that have received preliminary or final site plan approval
prior to the adoption of this section shall be exempt from the payment
of development fees, unless the developer seeks a substantial change
in the original approval. Where site plan approval is not applicable,
the issuance of a zoning permit and/or construction permit shall be
synonymous with preliminary or final site plan approval for the purpose
of determining the right to an exemption. In all cases, the applicable
fee percentage shall be determined based upon the Development Fee
Ordinance in effect on the date that the construction permit is issued.
(c)
Improvements or additions to existing one- and two-family dwellings
on individual lots shall not be required to pay a development fee,
but a development fee shall be charged for any new dwelling constructed
as a replacement for a previously existing dwelling on the same lot
that was or will be demolished, unless the owner resided in the previous
dwelling for a period of one year or more prior to obtaining a demolition
permit. Where a development fee is charged for a replacement dwelling,
the development fee shall be calculated on the increase in the equalized
assessed value of the new structure as compared to the previous structure.
(d)
Homes replaced as a result of a natural disaster (such as a fire
or flood) shall be exempt from the payment of a development fee.
e.
Nonresidential
Development Fees.
1.
Imposition
of Fees.
(a)
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.
(b)
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.
(c)
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.
2.
Eligible
Exactions, Ineligible Exactions and Exemptions for Nonresidential
Development.
(a)
The nonresidential portion of a mixed-use inclusionary or market
rate development shall be subject to a 2.5% development fee, unless
otherwise exempted below.
(b)
The 2.5% development fee shall not apply to an increase in equalized
assessed value resulting from alterations, change in use within the
existing footprint, reconstruction, renovations and repairs
(c)
Nonresidential developments shall be exempt from the payment of non-residential
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.
(d)
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.
(e)
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 Farmingdale as a lien against
the real property of the owner.
f.
Collection
Procedures.
1.
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.
2.
For
nonresidential developments only, the developer shall also be provided
with a copy of Form N-RDF, State of New Jersey Non-Residential Development
Certification/ Exemption, to be completed as per the instructions
provided. The developer of a nonresidential development shall complete
Form N-RDF as per the instructions provided. The Construction Official
shall verify the information submitted by the nonresidential developer
as per the instructions provided in Form N-RDF. The Tax Assessor shall
verify exemptions and prepare estimated and final assessments as per
the instructions provided in Form N-RDF.
3.
The
Construction Official responsible for the issuance of a construction
permit shall notify the Borough Tax Assessor of the issuance of the
first construction permit for a development which is subject to a
development fee.
4.
Within
90 days of receipt of such notification, the Borough Tax Assessor
shall prepare an estimate of the equalized assessed value of the development
based on the plans filed.
5.
The
Construction Official responsible for the issuance of a final certificate
of occupancy shall notify the Borough Tax Assessor of any and all
requests for the scheduling of a final inspection on a property which
is subject to a development fee.
6.
Within
10 business days of a request for the scheduling of a final inspection,
the Borough 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.
7.
Should the Borough of Farmingdale 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.
Except as provided in Subsection e1(c) 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.
9.
Appeal
of Development Fees.
(a)
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 Farmingdale.
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.
(b)
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
Farmingdale. 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.
g.
Affordable
Housing Trust Fund
1.
There
is hereby created a separate, interest-bearing Affordable Housing
Trust Fund to be maintained by the Chief Financial Officer of the
Borough of Farmingdale for the purpose of depositing development fees
collected from residential and nonresidential developers and proceeds
from the sale of units with extinguished controls.
2.
The
following additional funds shall be deposited in the Affordable Housing
Trust Fund and shall at all times be identifiable by source and amount:
(a)
Payments in lieu of on-site construction of a fraction of an affordable
unit, where permitted by ordinance or by agreement with the Borough
of Farmingdale;
(b)
Funds contributed by developers to make 10% of the adaptable entrances
in a townhouse or other multistory attached dwelling unit development
accessible;
(c)
Rental income from municipally operated units;
(d)
Repayments from affordable housing program loans;
(e)
Recapture funds;
(f)
Proceeds from the sale of affordable units; and
(g)
Any other funds collected in connection with Farmingdale's affordable
housing program.
3.
In the
event of a failure by the Borough of Farmingdale 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 Borough of Farmingdale, or, if not practicable, then within
the County or the Housing Region.
(a)
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.
4.
Interest
accrued in the Affordable Housing Trust Fund shall only be used to
fund eligible affordable housing activities approved by the Court.
h.
Use of
Funds.
1.
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
Borough of Farmingdale'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.
2.
Funds
shall not be expended to reimburse the Borough of Farmingdale for
past housing activities.
3.
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 Farmingdale is located.
(a)
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.
(b)
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.
(c)
Payments in lieu of constructing affordable housing units on site,
if permitted by ordinance or by agreement with the Borough of Farmingdale,
and funds from the sale of units with extinguished controls shall
be exempt from the affordability assistance requirement.
4.
The
Borough of Farmingdale 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.
5.
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.
(a)
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.
(b)
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.
i.
Monitoring.
The Borough of Farmingdale 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 Borough), funds
from the sale of units with extinguished controls, barrier-free escrow
funds, rental income from Borough-owned affordable housing units,
repayments from affordable housing program loans, and any other funds
collected in connection with Farmingdale's affordable housing programs,
as well as an accounting of the expenditures of revenues and implementation
of the spending plan approved by the Court.
j.
Ongoing
Collection of Fees.
1.
The
ability for the Borough of Farmingdale to impose, collect and expend
development fees shall expire with the expiration of the repose period
covered by its Judgment of Compliance unless the Borough of Farmingdale
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.
2.
If the
Borough of Farmingdale 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).
3.
The
Borough of Farmingdale 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 Borough of Farmingdale retroactively impose a development fee
on such a development. The Borough of Farmingdale 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 section shall be filed in writing with the Court.
