[1]
History: Ord. No. 437-09 §§ 1-19
[Ord. No. 548-2018]
a.
This Ordinance is intended to assure that low- and moderate-income
units ("affordable units") are created with controls on affordability
and that low- and moderate-income households shall occupy these units.
This Ordinance shall apply except where inconsistent with applicable
law.
b.
The Borough of West Cape May Planning Board has adopted a Housing
Element and Fair Share Plan pursuant to the Municipal Land Use Law
at N.J.S.A. 40:55D-1, et seq. (hereinafter "Fair Share Plan"). The
Fair Share Plan was subsequently endorsed by the governing body. The
Fair Share Plan describes how the Borough of West Cape May shall address
its fair share of low- and moderate-income housing as documented in
the Fair Share Plan itself, the Settlement Agreement entered into
between the Borough and Fair Share Housing Center ("FSHC") on March
28, 2018 (hereinafter "FSHC Settlement Agreement"), and the Court
Order approving same, which was entered by the Court on June 15, 2018
after a properly noticed Fairness Hearing.
c.
The Borough of West Cape May shall track the status of the implementation
of the Fair Share Plan.
[Ord. No. 548-2018]
The Borough of West Cape May 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 one year after the entry of the Borough's Round 3
Judgment of Compliance and Repose, and on every anniversary of that
date through 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 one year after the entry of the Borough's Round 3
Judgment of Compliance and Repose, and on every anniversary of that
date through 2025, the Borough agrees to provide annual reporting
of the status of all affordable housing activity within the municipality
through posting on the municipal website with a copy of such posting
provided to Fair Share Housing Center, using forms previously developed
for this purpose by COAH, or any other forms endorsed by the Court
Appointed Special Master and FSHC.
c.
The Fair Housing Act includes two provisions regarding action to
be taken by the Borough during its ten-year repose period. The Borough
will comply with those provisions as follows:
1.
For the midpoint realistic opportunity review due on July 2, 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 Fair Share Housing
Center, a status report as to its implementation of its Plan and an
analysis of whether any unbuilt sites or unfulfilled mechanisms continue
to present a realistic opportunity and whether the 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 Fair Share Housing Center, regarding whether any sites no longer
present a realistic opportunity and should be replaced and whether
the 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.
2.
For the review of very low income housing requirements required by
N.J.S.A. 52:27D-329.1, within 30 days of the third anniversary of
the entry of the Borough's Judgement of Compliance and Repose,
and every third year thereafter, the Borough will post on its municipal
website, with a copy provided to Fair Share Housing Center, a status
report as to its satisfaction of its very low income requirements,
including the family very low income requirements referenced herein.
Such posting shall invite any interested party to submit comments
to the Borough and Fair Share Housing Center on the issue of whether
the Borough has complied with its very low income housing obligation
under the terms of this settlement.
3.
In addition to the foregoing postings, the Borough may also elect
to file copies of its reports with COAH or its successor agency at
the State level.
[Ord. No. 548-2018]
The following terms when used in this Ordinance shall have the
meanings given in this Section:
Means the Fair Housing Act of 1985, P.L. 1985, c. 222 (N.J.S.A.
52:27D-301 et seq.) as has been subsequently amended.
Means constructed in compliance with the technical design
standards of the Barrier Free Subcode, N.J.A.C. 5:23-7.
Means the entity responsible for the administration of affordable
units in accordance with this ordinance, applicable COAH regulations
and the Uniform Housing Affordability Controls (UHAC)(N.J.A.C. 5:80-26.1
et seq.)
Means a regional marketing strategy designed to attract buyers
and/or renters of affordable units pursuant to N.J.A.C. 5:80-26.15.
Means the average percentage of median income at which restricted
units in an affordable housing development are affordable to low-
and moderate-income households.
Means, a sales price or rent within the means of a low- or
moderate-income household as defined by COAH in its applicable regulations
or an equivalent controlling New Jersey state agency; 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.
Means a housing development all or a portion of which consists
of restricted units.
Means a development included in the Borough's Fair Share
Plan, and includes, but is not limited to, an inclusionary development,
a municipal construction project or a 100 percent affordable development.
Means any mechanism in the Borough's Fair Share Plan
prepared or implemented to address the Borough's fair share obligation.
Means a housing unit proposed or created pursuant to the
Act, credited pursuant to applicable COAH regulations, the FSHC Settlement
Agreement, or an order of the Court.
Means the New Jersey Housing and Mortgage Finance Agency
established by P.L. 1983, c. 530 (N.J.S.A. 55:14K-1, et seq.).
Means 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 where the unit
is situated are 62 years or older; or 2) at least 80 percent of the
units are occupied by one person that is 55 years 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.
Shall mean a self-contained residential dwelling unit with
a kitchen, sanitary facilities, sleeping quarters and a private entrance,
which is created within an existing home, or through the conversion
of an existing accessory structure on the same site, or by an addition
to an existing home or accessory building, or by the construction
of a new accessory structure on the same site.
Means a facility licensed by the New Jersey Department of
Health and Senior Services to provide apartment-style housing and
congregate dining and to assure that assisted living services are
available when needed for four or more adult persons unrelated to
the proprietor and that offers units containing, at a minimum, one
unfurnished room, a private bathroom, a kitchenette and a lockable
door on the unit entrance.
Means a household that has been certified by an Administrative
Agent as a low-income household or moderate-income household.
Means the New Jersey Council on Affordable Housing.
Means the Department of Community Affairs of the State of
New Jersey, that was established under the New Jersey Fair Housing
Act (N.J.S.A. 52:27D-301 et seq.).
Means the State of New Jersey Department of Community Affairs.
Means a housing unit with health and safety code violations
that require the repair or replacement of a major system. A major
system includes weatherization, roofing, plumbing (including wells),
heating, electricity, sanitary plumbing (including septic systems),
lead paint abatement and/or load bearing structural systems.
Means any person, partnership, association, company or corporation
that is the legal or beneficial owner or owners of a lot or any land
proposed to be included in a proposed development including the holder
of an option to contract or purchase, or other person having an enforceable
proprietary interest in such land.
Means 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.
Means a development containing both affordable units and
market rate units. Inclusionary developments must have a minimum 20%
set aside of affordable units if the development has five or more
units and is a for-sale project, or a minimum 15% set-aside if the
development is a rental project. This term includes, but is not necessarily
limited to: new construction, the conversion of a non-residential
structure to residential and the creation of new affordable units
through the reconstruction of a vacant residential structure.
Means a household with a total gross annual household income
equal to 50 percent or less of the median household income.
Means a restricted unit that is affordable to a low-income
household.
Means the primary structural, mechanical, plumbing, electrical,
fire protection, or occupant service components of a building which
include but are not limited to, weatherization, roofing, plumbing
(including wells), heating, electricity, sanitary plumbing (including
septic systems), lead paint abatement or load bearing structural systems.
Means housing not restricted to low- and moderate-income
households that may sell or rent at any price.
Means the median income by household size for the applicable
county, as adopted annually by the Department.
Means a household with a total gross annual household income
in excess of 50 percent but less than 80 percent of the median household
income.
Means a restricted unit that is affordable to a moderate-income
household.
Means the employee charged by the governing body with the
responsibility for oversight and administration of the affordable
housing program for West Cape May.
Means 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.
Means 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).
Means the maximum housing value in each housing region affordable
to a four-person household with an income at 80 percent of the regional
median as defined by the Department's adopted Regional Income
Limits published annually by the Department.
Means the repair, renovation, alteration or reconstruction
of any building or structure, pursuant to the Rehabilitation Subcode,
N.J.A.C. 5:23-6.
Means 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.
Means a dwelling unit, whether a rental unit or ownership
unit, that is subject to the affordability controls of N.J.A.C. 5:80-26.1,
as may be amended and supplemented, but does not include a market-rate
unit financed under UHORP or MONI.
Means the Uniform Housing Affordability Controls set forth
in N.J.A.C. 5:80-26.1 et seq.
Means a household with a total gross annual household income
equal to 30 percent or less of the median household income.
Means a restricted unit that is affordable to a very low-income
household.
Means building insulation (for attic, exterior walls and
crawl space), siding to improve energy efficiency, replacement storm
windows, replacement storm doors, replacement windows and replacement
doors, and is considered a major system for rehabilitation.
[Ord. No. 548-2018]
a.
The provisions of this Ordinance 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 West Cape May
pursuant to the Borough's most recently adopted Housing Element
and Fair Share Plan.
b.
Moreover, this Ordinance 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.
[Ord. No. 548-2018]
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 20-year operating contract with the Department of Human Services,
Division of Developmental Disabilities, alternative living arrangements
shall have at least 30 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.
[Ord. No. 548-2018]
Accessory apartments are permitted by the Zoning Ordinance for
various zoning districts, provided the units are affordable to very
low-, low- and moderate-income households.
Accessory apartments may be developed as very low- income, low-income or moderate-income units. For further details about the Borough's Accessory Apartment Program, see Section 27-37.1.
[Ord. No. 548-2018]
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
|
[Ord. No. 548-2018]
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 percent of all restricted rental units shall be very low
income units (affordable to a household earning 30 percent 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. At least 50 percent of the very low
income units must be available to families.
2.
In each affordable development, at least 50 percent 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 percent of the total low- and moderate-income
units;
(b)
At least 30 percent of all low- and moderate-income units shall
be two bedroom units;
(c)
At least 20 percent 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 all of the foregoing requirements in 2.(a) through 2.(d)
cannot 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 paragraphs 2.(a) through 2.(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 West Cape May has collected funds from the
developer sufficient to make 10 percent 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 West Cape May's Affordable Housing Trust
Fund sufficient to install accessible entrances in 10 percent of the
affordable units that have been constructed with adaptable entrances.
(3)
The funds deposited under paragraph f.(2) above shall be used
by the Borough of West Cape May 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 West Cape May 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 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.
(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.
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.
2.
The maximum rent for restricted rental units within each affordable
development shall be affordable to households earning no more than
60 percent of median income, and the average rent for restricted rental
units shall be affordable to households earning no more than 52 percent
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 percent 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 percent of median income, and each affordable development
must achieve an affordability average of 55 percent 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 percent
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 percent 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 percent 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.
Income limits for all units that are part of the Borough's Housing
Element and Fair Share Plan, and for which income limits are not already
established through a federal program exempted from the Uniform Housing
Affordability Controls pursuant to N.J.A.C. 5:80-26.1, shall be updated
by the Borough annually within 30 days of the publication of determinations
of median income by HUD as follows:
(a)
The income limit for a moderate-income unit for a household
of four shall be 80 percent of the HUD determination of the median
income for COAH Region 1 for a family of four. The income limit for
a low-income unit for a household of four shall be 50 percent of the
HUD determination of the median income for COAH Region 1 for a family
of four. The income limit for a very low income unit for a household
of four shall be 30 percent of the HUD determination of the median
income for COAH Region 1 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 the previous year.
(b)
The income limits are based on carrying out the process in paragraph
(a) based on HUD determination of median income for the current Fiscal
Year, and shall be utilized by the Borough until new income limits
are available.
10.
In establishing sale prices and rents of affordable housing units,
the administrative agent shall follow the procedures set forth in
UHAC, utilizing the regional income limits established by the Council:
(a)
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 determined pursuant to
paragraph 9. In no event shall the maximum resale price established
by the administrative agent be lower than the last recorded purchase
price.
(b)
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 Northern New Jersey Area, upon
its publication for the prior calendar year. This increase shall not
exceed nine percent 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.
[Ord. No. 548-2018]
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 the NJDCA for its Section 8 program.
[Ord. No. 548-2018]
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:
[Ord. No. 548-2018]
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 Ordinance for a period of at least 30 years, until West Cape
May 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 Borough's Administrative
Agent, or an Administrative Agent appointed by a particular developer,
shall determine the restricted price for the unit and shall also determine
the non-restricted, 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 Borough's Administrative Agent,
or an Administrative Agent appointed by a particular developer, a
recapture note obligating the purchaser (as well as the purchaser's
heirs, successors and assigns) to repay, upon the first non-exempt
sale after the unit's release from the restrictions set forth
in this Ordinance, an amount equal to the difference between the unit's
non-restricted 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 Ordinance 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.
[Ord. No. 548-2018]
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 Borough's Administrative Agent, or an Administrative
Agent appointed by a particular developer.
b.
The Borough's Administrative Agent, or an Administrative Agent
appointed by a particular developer, 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 low- and moderate-income purchasers and those
paid by market purchasers, unless the master deed for the inclusionary
project was executed prior to the enactment of UHAC.
d.
The owners of restricted ownership units may apply to the Borough's
Administrative Agent, or an Administrative Agent appointed by a particular
developer, 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.
[Ord. No. 548-2018]
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 percent of
median income and moderate-income ownership units shall be reserved
for households with a gross household income less than 80 percent
of median income.
b.
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 percent of the household's eligible monthly income.
[Ord. No. 548-2018]
a.
Prior to incurring any indebtedness to be secured by a restricted
ownership unit, the owner shall apply to the Borough's Administrative
Agent, or an Administrative Agent appointed by a particular developer,
for a determination in writing that the proposed indebtedness complies
with the provisions of this Section, and the Borough's Administrative
Agent, or an Administrative Agent appointed by a particular developer,
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 percent of the
maximum allowable resale price of the unit, as such price is determined
by the Borough's Administrative Agent, or an Administrative Agent
appointed by a particular developer, in accordance with N.J.A.C. 5:80-26.6(b).
[Ord. No. 548-2018]
a.
The owners of restricted ownership units may apply to the Borough's
Administrative Agent, or an Administrative Agent appointed by a particular
developer, 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 Borough's
Administrative Agent, or an Administrative Agent appointed by a particular
developer, 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 10-year, straight-line depreciation, has been approved
by the Borough's Administrative Agent, or an Administrative Agent
appointed by a particular developer. Unless otherwise approved by
the Borough's Administrative Agent, or an Administrative Agent
appointed by a particular developer, 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.
[Ord. No. 548-2018]
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 Ordinance for a period of at least 30 years, until West Cape
May 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 Cape May. A copy of the filed document shall be provided
to the Borough's 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 Ordinance despite the occurrence of any of the following
events:
[Ord. No. 548-2018]
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 Borough's
Administrative Agent, or an Administrative Agent appointed by a particular
developer.
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 Borough's Administrative Agent, or an
Administrative Agent appointed by a particular developer.
c.
Application fees (including the charge for any credit check) shall
not exceed five percent of the monthly rent of the applicable restricted
unit and shall be payable to the Developer and/or Landlord or to the
Borough's Administrative Agent, or an Administrative Agent appointed
by a particular developer. If the fees are paid to the Borough's
Administrative Agent or an Administrative Agent appointed by a particular
developer they are to be applied to the costs of administering the
controls applicable to the unit as set forth in this Ordinance.
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 Ordinance.
[Ord. No. 548-2018]
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 percent 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 percent 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 percent of the regional median
household income by household size.
b.
The Borough's Administrative Agent, or a qualified Administrative
Agent appointed by a particular developer, 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 percent (40 percent 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 percent (40 percent 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 percent (40 percent
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.
c.
The applicant shall file documentation sufficient to establish the
existence of the circumstances in a.1 through b.5 above with the Borough's
Administrative Agent, or an Administrative Agent appointed by a particular
developer, who shall counsel the household on budgeting.
[Ord. No. 548-2018]
a.
The position of Municipal Housing Liaison (MHL) for the Borough of
West Cape May is established by this ordinance. The Borough shall
make the actual appointment of the MHL by means of a resolution.
1.
The MHL must be either a full-time or part-time employee of West
Cape May.
2.
The person appointed as the MHL must be reported to the Court and
thereafter posted on the Borough's website.
3.
The MHL must meet all the requirements for qualifications, including
initial and periodic training, if such training is made available
by COAH or the DCA.
4.
The Municipal Housing Liaison shall be responsible for oversight
and administration of the affordable housing program for the Borough
of West Cape May, including the following responsibilities which may
not be contracted out to the Administrative Agent, or the Administrative
Agent appointed by a specific developer:
(a)
Serving as the municipality's primary point of contact
for all inquiries from the State, affordable housing providers, Administrative
Agents and interested households;
(b)
The implementation of the Affirmative Marketing Plan and affordability
controls;
(c)
When applicable, supervising any contracting Administrative
Agent;
(d)
Monitoring the status of all restricted units in the Borough's
Fair Share Plan;
(e)
Compiling, verifying and submitting annual reports as required;
(f)
Coordinating meetings with affordable housing providers and
Administrative Agents, as applicable; and
(g)
Attending continuing education opportunities on affordability
controls, compliance monitoring and affirmative marketing as offered
or approved by the Affordable Housing Professionals of New Jersey
(AHPNJ), if such continuing education opportunities are made available
by COAH or the DCA.
b.
Subject to the approval of the Court, the Borough of West Cape May
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 Ordinance. 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 may
be subject to approval of the Court appointed Special Master or 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).
[Ord. No. 548-2018]
An Administrative Agent may be either an independent entity
serving under contract to and reporting to the Borough, or reporting
to a specific individual developer. 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 Borough
Administrative Agent shall monitor and work with any individual Administrative
Agents appointed by individual developers. The Administrative Agent(s)
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 West Cape May 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 non-eligibility;
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 West Cape May 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 West Cape May: Fair Share Housing
Center, the New Jersey State Conference of the NAACP, the Latino Action
Network, the Cape May County Branch of the NAACP, Senior Citizens
United Community Services (S.C.U.C.S.), 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 Cape
May County Register of Deeds or Cape May 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 Re-rentals:
1.
Instituting and maintaining an effective means of communicating information
between owners and the Borough's Administrative Agent, or any
Administrative Agent appointed by a specific developer, regarding
the availability of restricted units for resale or re-rental; 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 re-rental.
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 Ordinance;
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 Borough's
Administrative Agent, or any Administrative Agent appointed by a specific
developer;
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 Borough's Administrative Agent, or any
Administrative Agent appointed by a specific developer, 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 Borough's Administrative
Agent, or any Administrative Agent appointed by a specific developer,
to be approved by the Borough Council and the Court, setting forth
procedures for administering the affordability controls.
g.
Additional Responsibilities:
1.
The Borough's Administrative Agent shall have the authority
to take all actions necessary and appropriate to carry out its responsibilities
hereunder.
2.
The Borough's 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 Ordinance. The Borough's
Administrative Agent will be responsible for collecting monitoring
information from any Administrative Agents appointed by specific developers.
3.
The Borough's Administrative Agent, or any Administrative Agent
appointed by a specific developer, shall attend continuing education
sessions on affordability controls, compliance monitoring, and affirmative
marketing at least annually and more often as needed.
[Ord. No. 548-2018]
a.
The Borough of West Cape May shall adopt by resolution an Affirmative
Marketing Plan, 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 6 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 6, comprised
of Atlantic, Cape May, Cumberland and Salem 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 re-sales
and re-rentals. The Borough's Administrative Agent designated
by the Borough of West Cape May, or any Administrative Agent appointed
by a specific developer, shall implement the Affirmative Marketing
Plan to assure the affirmative marketing of all affordable units.
e.
In implementing the Affirmative Marketing Plan, the Borough's
Administrative Agent, or any Administrative Agent appointed by a specific
developer, 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 Borough's Administrative
Agent, or any Administrative Agent appointed by a specific developer,
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.
The costs of advertising and affirmative marketing of the affordable
units shall be the responsibility of the developer, sponsor or owner.
[Ord. No. 548-2018]
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, recoupment
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 $500.00 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 West Cape May 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 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 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 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 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 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 municipality shall obligate
the Owner to accept an offer to purchase from any qualified purchaser
which may be referred to the Owner by the municipality, with such
offer to purchase being equal to the maximum resale price of the low-
and moderate-income unit as permitted by the regulations governing
affordable housing units.
(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.
[Ord. No. 548-2018]
Appeals from all decisions of an Administrative Agent appointed
pursuant to this Ordinance shall be filed in writing with the Court.
[1]
History: Ord. No. 437-09 §§ 1-19
[Ord. No. 419-08 § 1]
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 rules
adopted by the New Jersey Council on Affordable Housing's (COAH).
b.
Pursuant to P.L. 2008, c. 46 section 8 (C. 52:27D-329.2) and the
Statewide Non-Residential Development Fee Act (C. 40:55D-8.1 through
8.7), COAH is 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 are under the jurisdiction of the Council
or court of competent jurisdiction and have an approved spending plan
may retain fees collected from nonresidential development.
c.
This section establishes standards for the collection, maintenance,
and expenditure of development fees pursuant to COAH's regulations
and in accordance with P.L. 2008, c. 46, Sections 8 and 32-38. Fees
collected pursuant to this section shall be used for the sole purpose
of providing low- and moderate-income housing.
This section shall be interpreted within the framework of COAH's
rules on development fees, codified at N.J.A.C. 5:97-8.
[Ord. No. 419-08 § 2]
a.
The Borough of West Cape May shall not impose development fees on
any applicant pursuant to this section until COAH or a Court has approved
the Development Fee Ordinance pursuant to N.J.A.C. 5:96-5.1, except
that residential fees may be collected pursuant to the previously
approved fee ordinance until such time as this section takes effect,
and non-residential fees shall be collected in accordance with the
Statewide Non-Residential Development Fee Act, N.J.S.A. 40:55D-8.1
et seq.
b.
The Borough of West Cape May shall not spend development fees until
COAH or a Court has approved a plan for spending such fees in conformance
with N.J.A.C. 5:97-8.10 and N.J.A.C. 5:96-5.3.
[Ord. No. 419-08 § 3]
a.
AFFORDABLE HOUSING DEVELOPMENT
COAH OR THE COUNCIL
DEVELOPMENT FEE
DEVELOPER
EQUALIZED ASSESSED VALUE
GREEN BUILDING STRATEGIES
The following terms, as used in this section, shall have the following
meanings:
Shall mean a development included in the Housing Element
and Fair Share Plan, and includes, but is not limited to, an inclusionary
development, a municipal construction project, or a 100% affordable
development.
Shall mean the New Jersey Council on Affordable Housing established
under the Act which has primary jurisdiction for the administration
of housing obligations in accordance with sound regional planning
considerations in the State.
Shall mean money paid by a developer for the improvement
of property as permitted under N.J.A.C. 5:97-8.3.
Shall mean 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.
Shall mean 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 (C. 54:1-35a through C. 54:1-35c).
Shall mean those strategies that minimize the impact of development
on the environment, and enhance 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.
[Ord. No. 419-08 § 4]
a.
Imposed Fees.
1.
Within all zoning districts in the Borough of West Cape May, residential
developers, except for developers of the types of development specifically
exempted below, shall pay a fee of one and one-half (1.5%) percent
of the equalized assessed value for residential development, provided
no increased density is permitted.
2.
When an increase in residential density pursuant to N.J.S.A. 40:55D-70d(5)
(known as a "d" variance) has been permitted, developers shall be
required to pay a development fee of 6% of the equalized assessed
value (EAV) for each additional unit above that permitted by right
which may be realized. However, 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.
Example: If an approval allows four units to be constructed
on a site that was zoned for two units, the fees could equal one and
one-half (1.5%) percent of the equalized assessed value on the first
two units; and the specified higher percentage up to 6% of the equalized
assessed value for the two additional units, provided zoning on the
site has not changed during the two-year period preceding the filing
of such a variance application.
b.
Eligible exactions, Ineligible Exactions and Exemptions for Residential
Development.
1.
Affordable housing developments 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.
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.
4.
Nonprofit organizations which have received tax exempt status pursuant
to Section 501(c)(3) of the Internal Revenue Code, providing current
evidence of that status is submitted to the Municipal Clerk, together
with a certification that services of the organization are provided
at reduced rates to those who establish an inability to pay existing
charges, shall be exempted from paying a development fee.
5.
Federal, State, County and local governments shall be exempted from
paying a development fee.
6.
The owner of a residential unit who rebuilds when the owner's
existing dwelling unit was destroyed due to fire, flood or other natural
disaster shall be exempt from paying a development fee.
[Ord. No. 419-08 § 5]
a.
Imposed Fees.
1.
Within all zoning districts, nonresidential developers, except for
developers of the types of development specifically exempted, shall
pay a fee equal to two and one-half (2.5%) percent of the equalized
assessed value of the land and improvements, for all new nonresidential
construction on an unimproved lot or lots.
2.
Nonresidential developers, except for developers of the types of
development specifically exempted, shall also pay a fee equal to two
and one-half (2.5%) percent 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 two and
one-half (2.5%) percent shall be calculated on the difference between
the equalized assessed value of the pre-existing land and improvement
and the equalized assessed value of the newly-improved structure,
i.e. land and improvement, at the time 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.
b.
Eligible Exactions, Ineligible Exactions and Exemptions for Nonresidential
Development.
1.
The nonresidential portion of a mixed-use inclusionary or market
rate development shall be subject to the two and one-half (2.5%) percent
development fee, unless otherwise exempted below.
2.
The two and one-half (2.5%) percent fee shall not apply to an increase
in equalized assessed value resulting from alterations, change in
use within existing footprint, reconstruction, renovations and repairs.
3.
Nonresidential developments shall be exempt from payment of nonresidential
development fees in accordance with the exemptions required pursuant
to P.L. 2008, c.46, as specified in the Form N-RDF "State of New Jersey
Non-Residential Development Certification/ Exemption" Form. Any exemption
claimed by a developer shall be substantiated by that developer.
4.
A developer of a nonresidential development exempted from the nonresidential
development fee pursuant to P.L. 2008, c.46 shall be subject to it
at such time the basis for the exemption no longer applies, and shall
make the payment of the non-residential development fee, in that event,
within three years after that event or after the issuance of the final
certificate of occupancy of the non-residential development, whichever
is later.
5.
If a property which was exempted from the collection of a nonresidential
development fee thereafter ceases to be exempt from property taxation,
the owner of the property shall remit the fees required pursuant to
this section within 45 days of the termination of the property tax
exemption. Unpaid nonresidential development fees under these circumstances
may be enforceable by the Borough of West Cape May as a lien against
the real property of the owner.
[Ord. No. 419-08 § 6]
a.
Upon the granting of a preliminary, final or other applicable approval,
for a development, the applicable approving authority shall direct
its staff to notify the Borough's Construction Official responsible
for the issuance of a building 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 building
permit shall notify the local Tax Assessor of the issuance of the
first building permit for a development which is subject to a development
fee.
d.
Within 90 days of receipt of that notice, the Municipal Tax Assessor,
based on the plans filed, shall provide an estimate of the equalized
assessed value of the development.
e.
The Construction Official responsible for the issuance of a final
certificate of occupancy shall notify the local Assessor of any and
all requests for the scheduling of a final inspection on property
which is subject to a development fee.
f.
Within 10 business days of a request for the scheduling of a final
inspection, the Municipal Assessor shall confirm or modify the previously
estimated equalized assessed value of the improvements of the development;
calculate the development fee, and thereafter notify the developer
of the amount of the fee.
g.
Should the Borough of West Cape May 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 (C.40:55D-8.6).
h.
Fifty percent of the development fee shall be collected at the time
of issuance of the building permit. The remaining portion shall be
collected at the issuance of the certificate of occupancy. The developer
shall be responsible for paying the difference between the fee calculated
at building permit and that determined at issuance of certificate
of occupancy.
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 Borough of West Cape May.
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, R.S.54:48-1 et seq., within 90 days after the date of such determination.
Interest earned on amounts escrowed shall be credited to the prevailing
party.
2.
A developer may challenge nonresidential development fees imposed
by filing a challenge with the Director of the Division of Taxation.
Pending a review and determination by the Director, which shall be
made within 45 days of receipt of the challenge, collected fees shall
be placed in an interest bearing escrow account by the Borough of
West Cape May. 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, R.S.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.
[Ord. No. 419-08 § 7]
a.
There is hereby created a separate, interest-bearing housing trust
fund to be maintained by the Borough's Chief Financial Officer
for the purpose of depositing development fees collected from residential
and non-residential 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 affordable units;
2.
Developer-contributed funds to make 10% of the affordable entrances
in a townhouse or other multistory attached development accessible;
3.
Rental income from municipally-operated units;
4.
Repayments from affordable housing program loans;
5.
Recapture funds;
6.
Proceeds from the sale of affordable units; and
7.
Any other funds collected in connection with the Borough of West
Cape May's affordable housing program.
c.
The Borough of West Cape May shall provide COAH with written authorization,
in the form of a three-party escrow agreement between the municipality,
the Borough's banking institution, and COAH to permit COAH to
direct the disbursement of the funds as provided for in N.J.A.C. 5:97-8.13(b).
d.
All interest accrued in the housing trust fund shall only be used
on eligible affordable housing activities approved by COAH or the
Court.
[Ord. No. 419-08 § 8]
a.
The expenditure of all funds shall conform to a spending plan approved
by COAH or the Court. Funds deposited in the housing trust fund may
be used for any activity approved by COAH or the Court to address
the Borough of West Cape May'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, rehabilitation,
new construction of affordable housing units and related costs, accessory
apartment, market to affordable, or 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, or any other activity as permitted
pursuant to N.J.A.C. 5:97-8.7 through 8.9 and specified in the approved
spending plan.
b.
Funds shall not be expended to reimburse the Borough of West Cape
May for past housing activities.
c.
At least 30% of all development fees collected and interest earned
shall be used to provide affordability assistance to low- and moderate-income
households in affordable units included in the municipal Fair Share
Plan. One-third (1/3) of the affordability assistance portion of development
fees collected shall be used to provide affordability assistance to
those households earning thirty (30%) percent or less of median income
by region.
1.
Affordability assistance programs may include down payment assistance,
security deposit assistance, low interest loans, rental assistance,
assistance with homeowners association or condominium fees and special
assessments, and assistance with emergency repairs.
2.
Affordability assistance to households earning thirty (30%) percent
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 thirty (30%) percent or less
of median income.
3.
Payments in lieu of constructing affordable units on site and funds
from the sale of units with extinguished controls shall be exempt
from the affordability assistance requirement.
d.
The Borough of West Cape May may contract with a private or public
entity to administer any part of its Housing Element and Fair Share
Plan, including the requirement for affordability assistance, in accordance
with N.J.A.C. 5:96-18.
e.
No more than twenty (20%) percent of all revenues collected from
development fees may be expended on administration, including, but
not limited to, salaries and benefits for municipal employees or consultant
fees necessary to develop or implement a new construction program,
a Housing Element and Fair Share Plan, and/or an affirmative marketing
program. In the case of a rehabilitation program, no more than twenty
(20%) percent of the revenues collected from development fees shall
be expended for such administrative expenses. Administrative funds
may be used for income qualification of households, monitoring the
turnover of sale and rental units, and compliance with COAH's
monitoring requirements. Legal or other fees related to litigation
opposing affordable housing sites or objecting to the Council's
regulations and/or action are not eligible uses of the Affordable
Housing Trust Fund.
[Ord. No. 419-08 § 9]
a.
The Borough of West Cape May shall complete and return to COAH all
monitoring forms included in the annual monitoring report related
to the collection of development fees from residential and nonresidential
developers, payments in lieu of constructing affordable units on site,
and funds from the sale of units with extinguished controls barrier
free escrow funds, rental income, repayments from affordable housing
program loans, and any other funds collected in connection with the
Borough of West Cape May's housing program, as well as to the
expenditure of revenues and implementation of the plan approved by
the court. All monitoring reports shall be completed on forms designed
by COAH.
[Ord. No. 419-08 § 10]
a.
The ability of the Borough of West Cape May to impose, collect and
expend development fees shall expire with its substantive certification
or judgment of compliance unless the Borough of West Cape May has
filed an adopted Housing Element and Fair Share Plan with COAH, has
petitioned COAH for substantive certification, or brought a declaratory
relief action in Court pursuant to N.J.S.A. 52:27D-313 and has received
approval of its development fee ordinance by COAH or a court. If the
Borough of West Cape May fails to renew its ability to impose and
collect development fees prior to the expiration of its substantive
certification or judgment of compliance, it may be subject to forfeiture
of any or all funds remaining within its municipal 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 (C.52:27D-320). The Borough of West Cape May shall not impose
a residential development fee on a development that receives preliminary
or final site plan approval after the expiration of its substantive
certification or its judgment of compliance, nor shall the Borough
of West Cape May retroactively impose a development fee on such a
development. The Borough of West Cape May shall not expend development
fees after the expiration of its substantive certification or its
judgment of compliance.
[Ord. No. 419-08 § 11; Ord. No. 433-09 § 2]
Notwithstanding the provisions of any other ordinance to the
contrary, the provision of this section shall not apply to the development
within the Mount Laurel zoning districts containing inclusionary affordable
housing units.
