Berkeley Township City Zoning Code
ARTICLE XII
Mount Laurel Affordable Housing
§ 35-112.1 Purpose.
[Ord. No. 94-29 § 118-17; Ord. No. 2017-14-OAB § 2]
The purpose of these provisions is to provide a realistic opportunity for the construction of Berkeley Township's constitutional obligation to provide for its fair share of affordable housing for households with low- and moderate-incomes, as directed by the Superior Court and is consistent with N.J.A.C. 5:93-1, et seq., as amended and supplemented by N.J.A.C. 5:80-26.1, et seq. and N.J.S.A. 52:27D-301 et seq.
§ 35-112.2 Applicability.
[Ord. No. 2017-14-OAB § 3]
a.
Applicability. The provisions of this article shall apply:
1.
To all affordable housing developments and affordable housing units that currently exist within Berkeley Township;
2.
To all affordable housing developments and affordable housing units that are proposed to be created pursuant to the Berkeley Township Housing Plan Element and Fair Share Plan;
3.
To all unanticipated future developments that will provide affordable housing for low- and moderate-income households; and
4.
To any property in Berkeley Township that is currently zoned for nonresidential uses and that is subsequently rezoned for multifamily residential purposes, and to all approvals for multifamily residential development granted by the Berkeley Township Planning Board or Zoning Board of Adjustment, including approvals of use or density variances, site plans, or subdivisions, and redevelopment projects subject to a redevelopment plan adopted by the Township Governing Body governing the development and redevelopment of designated areas in need of rehabilitation or areas in need of redevelopment in the Township, including substantial revisions to previously approved developments, where such rezoning, approval or revision results in or increases the number of multifamily residential units by five or more units.
§ 35-113 DEFINITIONS.
[Ord. No. 94-29 § 118-17.1; Ord. No. 94-55; Ord. No. 2017-14-OAB § 4]
Means the Fair Housing Act of 1985, P.L. 1985, c. 222 (N.J.S.A. 52:27D-301 et seq.)
Means constructed in compliance with the technical design standards of the Barrier Free Subcode, N.J.A.C. 5:23-7.
Means the entity designated by the Township to administer affordable units in accordance with this article, N.J.A.C. 5:93, and UHAC (N.J.A.C. 5:80-26).
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 new restricted units in an affordable housing development are affordable to low- and moderate-income households.
Means, 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.
Means a development included in or approved pursuant to the Housing Element and Fair Share Plan or otherwise intended to address the Township's fair share obligation, and includes, but is not limited to, an inclusionary development, a municipal construction project or a 100% affordable housing development.
Means any mechanism in a municipal Fair Share Plan prepared or implemented to address a municipality's fair share obligation.
(AH site) means any site which will provide affordable housing on or off site or any site which, pursuant to an agreement with the Township, will generate monies to fund affordable housing programs.
Means a fund (a) to receive monies paid pursuant to the Repayment Option, pursuant to a Mandatory Fee Ordinance, or pursuant to any other provision of this article; and (b) to be used strictly for affordable housing purposes.
Means a housing unit proposed or created pursuant to the Act and approved for crediting by COAH, its successor entity, or the Court and/or funded through an affordable housing trust fund.
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 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.
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 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 DCA; 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.
Means 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.
Means a household that has been certified by an Administrative Agent as a low-income household or moderate-income household.
Means the Council on Affordable Housing, as established by the New Jersey Fair Housing Act (N.J.S.A. 52:27D-301, et seq.) or its successor entity.
Shall mean and refer either (a) to the orders entered June 6, 1991 and July 1994 with respect to the Lifetime settlement; or (b) to the order entered June 1991 with respect to the Foxmoor settlement.
Means the State of New Jersey Department of Community Affairs.
Means 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.
Means 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.
Means a plan submitted by the developer and approved by the Affordable Housing Administrator which shall identify the manner in which the developer plans to develop, price, market and restrict the low- and moderate-income dwelling units in accordance with this article.
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 money paid by a developer for the improvement of property as permitted in N.J.A.C. 5:97-8.3.
Means 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.
Means the unrestricted price of a low or moderate-income housing unit if sold at a current real estate market rate.
Means 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.
Shall mean a judgment issued by the Superior Court approving the Township's plan to satisfy its fair share obligation.
Means a household with a total gross annual household income equal to 50% or less of the median household income.
Means a restricted unit that is affordable to a low-income household.
Means the low- and moderate-income housing to be constructed on any site shall collectively be referred to as the lower income housing units.
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 and load bearing structural systems.
Means the fee paid pursuant to a Mandatory Fee Ordinance.
Means an ordinance which prohibits development pursuant to an existing permitted use in the zoning ordinance without compelling the affected developer to contribute monies to the municipality's affordable housing fund.
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 housing region, as adopted annually by COAH or a successor entity approved by the Court.
Means a household with a total gross annual household income in excess of 50% but less than 80% of the median household income.
Means a restricted unit that is affordable to a moderate-income household.
For the purposes of this article, means a residential development that is located in buildings that contain five or more dwelling units, including, but not limited to, dwelling units that are located one over another, garden apartments, townhouse developments, multistory apartment or condominium buildings, and mixed-use developments containing a combination of non-residential and residential uses.
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 any parcel or area of water or land essentially unimproved and set aside, dedicated, designated or reserved for public or private use or enjoyment or for the use and enjoyment of owners and occupants of land adjoining or neighboring such open space; provided that such areas may be improved with only those buildings, structures, streets and off-street parking and other improvements that are designed to be incidental to the natural openness of the land.
Means a zoned area of the Township in which low- and moderate-income housing may be built as a matter of right in addition to another use.
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% of the regional median as defined by duly adopted Regional Income Limits published annually by COAH or a successor entity.
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 obligation of a seller exercising the repayment option to pay 95% of the price differential to Berkeley Township at closing for use within the municipal housing plan.
Means the option of a seller of a low- or moderate-income unit to sell a unit pursuant to N.J.A.C. 5:92-12.7 at a fair market value subject to compliance with the terms of the repayment clause.
Means 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.
Means the percentage of housing units restricted to low- and moderate-income households within an inclusionary development.
Mean a fully executed settlement agreement dated June 6, 1991 and July 1994 between the Township of Berkeley, the Berkeley Township Planning Board and Lifetime Homes of New Jersey, Inc. and a fully executed settlement agreement dated June 1991 between the Township of Berkeley, the Berkeley Township Board of Adjustment and Foxmoor Berkeley Associates, and a fully executed settlement agreement dated October 2016 between the Township of Berkeley and the Fair Share Housing Center, Inc.
Means the Uniform Housing Affordability Controls set forth in N.J.A.C. 5:80-26, et seq.
Means a household with a total gross annual household income equal to 30% or less of the median household income for the applicable housing region.
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 purposes of a rehabilitation program.
§ 35-114 AFFORDABLE HOUSING SITES AND SCHEDULE.
[Ord. No. 94-29 § 118-17.2]
a.
Required Participation. Any developer of any Affordable Housing site as set forth in this chapter, shall have the responsibility to participate in the Township's efforts to provide its fair share of lower income housing. The level and type of participation shall be as set forth herein and in the settlement agreement. Subdivision and site plan approval of properties required to participate in the production of lower income housing shall be denied unless the developer complies with the obligation to provide lower income housing pursuant to this section and the settlement agreement, and the Planning Board may impose reasonable conditions to secure such undertaking.
No application pursuant to a set aside ordinance or the overlay zone shall be valid unless the Planning Board resolution granting approval contains a nonseverable condition that the affordable housing requirements shall be binding upon the applicant and all heirs, successors and assigns.
Any developer of any affordable housing site identified in the settlement agreement shall have an obligation to satisfy all obligations created by the agreement.
b.
Low and Moderate Income Housing Required. Developers of the affordable housing sites, as designated on the Zoning Map of the Township of Berkeley, Ocean County, New Jersey, shall be required to set aside the number of affordable units specified herein. The Planning Board may only reduce the affordable housing responsibilities if it grants approval for fewer market units than set forth in the Berkeley Township Affordable Housing Schedule included as an attachment to this chapter.
In addition to the requirements set forth herein, any developer of any affordable housing site shall be subject to the specific requirements of the Settlement Agreement or Consent Order, if applicable, and any obligations the Court may impose in the process of approving the Township's housing element and fair share plan.
c.
Unit Location. In those developments where the affordable units are to be constructed on-site, the affordable housing units shall be reasonably distributed through the development in a manner deemed acceptable to the AH Administrator.
d.
Phasing. Approval of the Developer's Affordable Housing Plan shall be contingent upon the development, whether if developed in one stage or in two or more stages, meeting the following phasing schedule:
Minimum Percentage of Low and Moderate Income Units Completed With Certificates of Occupancy | Percentage of Marketing Housing Units Completed With Certificates of Occupancy |
|---|---|
0 | 25 |
10 | 25 + 1 |
50 | 50 |
75 | 75 |
100 | 90 |
— | 100 |
e.
In instances where the developer is making a contribution in lieu of constructing affordable units, the developer shall pay the contributions required by the settlement agreement prior to the issuance of a certificate of occupancy for each and every unit contemplated by the approved development in accordance with the phasing schedule set forth in Subsection d above.
§ 35-115 MOUNT LAUREL COMPLIANCE OVERLAY ZONE DISTRICTS.
[Ord. No. 94-29 § 118-17.3]
The following overlay zone districts are created to provide appropriate locations for the construction of affordable housing for low and moderate income.
Zone | Location | |
|---|---|---|
a. | R-100 Planned Residential Retirement Community (R-100-PRRC) | Overlays portions of an existing R-100 and R-200 Zone containing Block 1095, Lots 3 and 4; Block 1101, Lot 9; Block 1108, Lots 1, 1.01 and 1.02; Block 1206, Lot 3 p/o and Lot 3.01 p/o; Block 1206, Lots 5 and 7. |
b. | Mount Laurel Compliance/Waterfront Zone (MLC/W Zone) | Overlays portions of an existing R-200 Zone containing Block 1218, Lots 12 and 13 |
c. | Mount Laurel Compliance/Waterfront Zone (MLC/W Zone) | Overlays portions of an existing R-200 Zone containing Block 1265, Lot 5; Block 1267, Lot 1; Block 1268, Lots 2-42; Block 1269, Lots 1-31; Block 1270, Lots 1-50; Block 1271, Lots 1-10; Block 1271.01, Lots 11-28; Block 1272, Lots 51, 51.01, 52-61; Block 1272.01, Lots 38-42; Block 1272.02, Lots 29-36 |
d. | Mount Laurel Compliance/Lagoon Zone (MLC/L Zone) | Overlays portions of an exiting R-60 and R-200 Zone containing Block 1244, Lot 1 p/o; Block 1264, Lot 1 p/o. |
e. | Mount Laurel Compliance/Residential Multi-Family Zone (MLC/RMF Zone) | Overlays portions of an existing R-100 and R-200 Zone containing Block 1244, Lot 1 p/o; Block 1264, Lot 1 p/o; Block 1248.13, Lots 1-12; Block 1252.9, Lots 3-7 and 11; Block 1253.10, Lots 5-18; Block 1254, Lots 8-46; Block 1249.14, Lots 1-20; Block 1250, Lots 1-22; Block 1262, Lots 1-14; Block 1263, Lots 5, 6, 9-18 and 23-44; Block 1259, Lots 1-44; Block 1255, Lots 1-52; Block 1251, Lots 1-22 |
f. | Mount Laurel Compliance/Lagoon Zone (MLC/L Zone) | Overlays portions of an existing R-200 and NB Zone containing Block 1206, Lot 3 p/o, 3.01 p.o and 4 |
g. | R-100 Twin Zone (R-100T Zone) | Overlays the existing R-100 Zone in the Manitou Park Section of the Township. It contains those land areas in Manitou Park from First Street to Eleventh Street between Fifth Avenue and the Township boundary at South Toms River Borough; and from Eleventh Street to Thirteenth Street between Second Avenue and the Township boundary at South Toms River Borough. It also contains those land areas in Manitou Park from Eleventh Street to the westerly end of Manitou Park between Fifth Avenue and Second Avenue and from Thirteenth Street to the westerly end of Manitou Park between Second Avenue and First Avenue |
h. | Mount Laurel Compliance R-150/50 Zone (MLC/R-150/50) | Overlays a portion of the existing R-150 Zone along Serpentine Drive known as Block 973, Lots 1, 12, 16-22, 25-105, 112-118, 136-231, 236-243, 254-262, 351-365, 381-409, 422-429, 440 and 441 containing 29.8 acres. |
i. | Neighborhood Professional Office Zone (NPO) | Overlays portions of an existing R-200 Zone and the R-100 PRRC Zone containing Block 1108.03, Lot 1; Block 1108.02, Lot 15; Block 1108.05, Lot 1. |
§ 35-116 MARKET AND AFFORDABLE UNITS IN OVERLAY ZONES.
§ 35-117 GENERAL PROVISIONS.
[Ord. No. 94-29 § 118-17.4; Ord. No. 2017-14-OAB § 9]
a.
Overall Density. Up to 935 market units may be constructed in the R-100 PRRC; MLC/W; MLC/L; and MLC/RMF Zones. In the event LHNJ owns fewer than 540 gross acres, the permitted number of units shall be reduced in accord with the following formula:
935 x actual acreage/540 = Total Permitted Units
b.
Up to 20,000 square feet of office space may be constructed in the NPO zone.
c.
Up to two marinas and boat launching facilities on appropriate sites are permitted, provided that adequate provision is made for public access and use of the facilities.
d.
Upon written notification to the Township Clerk and Planning Board, units may be transferred from parcel to parcel at LHNJ option thereby decreasing the number of units which may be built on a parcel and increasing the number of units which may be built on another parcel, so long as the transfers are in accordance with the Schedule of Parcel Densities. Subsequent to such notification, a notice indicating the transfer of units from one parcel to another shall be filed with the Ocean County Clerk.
e.
For each parcel the developer shall obtain approval of the New Jersey Department of Environmental Protection and Energy pursuant to the Coastal Area Facility Review Act prior to construction of any market units.
f.
Lifetime shall (1) forward to the Township Engineer copies of all documents submitted to the DEPE; (2) notify the Township of all meetings between Lifetime and the DEPE regardless of whether those meetings are formal or informal; and (3) give the Township Engineer the opportunity to participate in such meetings. The Township will assist Lifetime in making the appropriate applications to comply with all reviewing agency requirements provided that Lifetime complies with the requirements set forth herein.
g.
Where a State regulated agency requires a change in an approved plan, the Township will approve the change as long as the total number of units as set forth herein are not increased, and the development standards set forth in this chapter are not violated. The Township shall grant otherwise necessary waivers or variances to such changes as required by the reviewing agencies.
To the extent that the reviewing agencies were to require major modifications to the plan, a new concept plan incorporating the State agencies' modifications will be submitted to the Township for approval. Such review will be limited to those portions of the project where such major modification has been made. Major modifications are defined as a decrease of more than 50% in the total number of units; an increase in net density of more than 50% in any individual section of the project; a higher reclassification of the type of street within the circulation system (e.g., a minor street modified to become a collector); or the realignment of an existing Township street by more than 500 feet at any point.
h.
Lifetime has an obligation to provide 234 low and moderate income units. This obligation is contingent upon Lifetime's securing the right to construct the 935 market rate dwelling units in accordance herewith. In the event Lifetime secures the right to construct fewer than 935 market units, its Mount Laurel obligation shall be reduced proportionately so that Lifetime shall not be required to provide for Mount Laurel purposes a number of units in excess of or less than 25% of the total number of market rate units permitted.
i.
Lifetime has an obligation to provide lower income units for Berkeley Township in accordance with this chapter whether exclusively through the construction of lower income housing or through a combination of construction of lower income housing, making monetary payments into a trust fund for the rehabilitation of deteriorated units, bring appropriate infrastructure improvements to Manitou Park and by making contributions to the "Manitou Improvement Fund." In the event that Lifetime cannot provide lower income units in accordance with this chapter, Lifetime's obligation to fulfill its Mount Laurel obligations pursuant to this chapter will be accomplished by mechanisms to be agreed upon by the parties. Under no circumstances shall the rights contemplated herein be severable from the obligations to provide for a number of lower income housing units less than 25% times the total number of market units permitted with exception of the Neighborhood Professional Office Zone (NPO) which shall have no Mount Laurel responsibilities associated therewith.
j.
Lifetime Further Agrees to the Following:
1.
Lifetime will voluntarily contribute $561,000 to the Township to be used for recreation, fire, first aid and/or related purposes. The contribution will be used in the immediate vicinity of the market rate dwelling units or may be used for infrastructure or for any other costs incurred by the Township in providing lower income housing pursuant to the settlement. Lifetime will pay $600 at the time of receipt of each market rate unit building permit is issued to Lifetime for market rate units up to and including the first 935 permits issued. Lifetime's maximum contribution pursuant to this clause shall be $561,000.
2.
Lifetime commits to pay the cost of a traffic light at the intersection of Veeder Lane and Ocean Gate Drive which will be electronically coordinated with the light at Route 9 and Ocean Gate Drive, provided that all State and other necessary governmental approvals have been secured so as to permit development of at least 545 age restricted units as permitted by this Order in the area north of Veeder Lane, and provided that New Jersey Department of Transportation (DOT) and all other necessary governmental approvals for such traffic light are obtained. The Township will be the applicant for all necessary government approvals. Lifetime shall be responsible for the payment of reasonable costs incurred in preparing such application. Assuming all necessary approvals are obtained, Lifetime will pay the cost of the traffic light on or before the date of issuance of the first certificate of occupancy in the age restricted portion of the development north of Veeder Lane. In the event that Lifetime secures fewer than 545 units, nothing herein is intended to bar the Township from securing a contribution for the traffic light in accordance with State law.
3.
All open space lands not committed to active recreation within Lifetime ownership (other than any common space within any townhouse community or condominium project) offered by Lifetime will be dedicated to a public body to be designated by the Township, and the Township will accept all such open space lands provided that Lifetime demonstrates that the property is reasonably free from any environmental hazards or violations of law and Lifetime provides clear title to the property. Lifetime shall not be required to obtain any riparian grants or to clear NJDEPE claims to wetlands or riparian lands. Open space lands will be identified on a sectional basis, at the time of submittal of site plan approval for each individual section. Lifetime must include adequate access to all lands dedicated to the public body. The amount of open space land is anticipated (but not represented) to be approximately 300 acres, the majority of which will be wetlands. Upon filing a final plat with the County Clerk, open space land dedicated to the public body will be given a tax-exempt status.
4.
Lifetime shall discharge its affordable housing obligation in the following manner and in the following sequence.
(a)
Lifetime shall pay $10,000 per affordable unit for the rehabilitation of 53 deteriorated units into a trust fund to be administered by the Township or its designee.
(b)
Lifetime shall bring appropriate infrastructure, including water, sewer, drainage and street widening to meet the needs of the existing residents of Manitou Park, as well as the future affordable housing units to be constructed in Manitou Park. Lifetime shall be given credit for one affordable housing unit for each $10,000 expended on these Manitou Park Community improvements. In the event Lifetime receives monies from the Toms River Water Company or any other governmental entity and/or source of reimbursement as a result of potable water improvements, Lifetime's expense shall be reduced accordingly and its credit shall be reduced accordingly.
(c)
Before commencing the final phase of the upgrading of Manitou Park involving the construction of affordable housing, Lifetime shall pay $300,000 into a separate account which shall be labeled the "Manitou Improvement Fund." Lifetime shall be given credit for 30 affordable units as a result of the contribution of $300,000 to the Manitou Improvement Fund.
(d)
Lifetime shall construct up to 100 affordable units on the Manitou lots.
(e)
General provisions concerning Lifetime's affordable housing responsibilities:
(1)
In those instances where Lifetime is discharging its affordable housing responsibilities by making monetary payments, Lifetime shall discharge those responsibilities by making the payments on a pro rata basis as Lifetime obtains certificates of occupancy for each market unit;
(2)
Pursuant to the 25% rule, Lifetime shall proceed through each phase of its affordable housing responsibilities set forth above only to the extent it still has an obligation.
5.
For purposes of evaluating whether any modification increases the responsibilities of Lifetime beyond those specified above, a value of $15,000 shall be ascribed for each of the units slated for construction in Manitou Park.
6.
In conjunction with the construction of a jetty and the need for maintenance dredging in the vicinity of the market parcels; and in anticipation of the demands the market parcels will create in the area, Lifetime shall pay $25,000 within 30 days of approval of this agreement by the Court and $50,000 within one year from the execution of this agreement by the Court. These monies shall be credited against the $561,000 contemplated by this chapter without any consideration of the interests associated with the $75,000. In the event the Township subsequently determines that it needs more than the $75,000 set forth herein for the purposes set forth herein or for other related recreational purposes, it shall be free to apply any of the $561,000 fund referenced above toward the purposes.
k.
All improvements facilities constructed by inclusionary developers and intended for public dedication shall be bonded by the developer. Improvements and facilities not intended for public dedication shall not be bonded; however, a bond estimate will be prepared for the purpose of establishing the inspection fee escrow. Furthermore, if the developer seeks a certificate of occupancy or a temporary certificate of occupancy prior to the completion of the private improvements and facilities, the developer shall post a bond to cover the estimated cost of the remaining incomplete or unsatisfactory improvements as determined by the Township Engineer.
l.
Requirements for Affordable Housing. Developments which include affordable housing units shall be subject to the following provisions:
1.
Low-Income Housing. Low-income housing shall be affordable, according to Federal Department of Housing and Urban Development or other recognized standards for home ownership and rental costs, and occupied or reserved for occupancy by households with a gross household income equal to 50% or less of the median gross household income for households of the same size within the housing region in which the housing is located, and subject to affordability controls.
2.
Moderate-Income Housing. Moderate-income housing shall be affordable, according to Federal Department of Housing and Urban Development or other recognized standards for home ownership and rental costs, and occupied or reserved for occupancy by households with a gross household income equal to or more than 50% but less than 80% of the median gross household income for households of the same size within the housing region in which the housing is located, and subject to affordability controls.
3.
In accordance with N.J.S.A. 52:27D-329.1 (P.L. 2008, C. 46) at least 13% of the affordable units provided within the Township shall be reserved for very low-income households, i.e. households earning 30% or less of the median income and of that amount at least 50% shall be reserved for very low-income families (i.e., non-age restricted and not reserved for special needs populations). For developments with eight or more affordable housing units on site, at least 13% of all low- and moderate-income units shall be affordable to households earning no more than 30% of median income. A minimum of 50% of these units shall be reserved for very low-income families.
4.
Age Restriction. The sales and rentals of not more than 25% of the affordable housing units constructed within the Township may be age restricted to senior citizens as defined by and in accordance with the Federal Fair Housing Act and as regulated by N.J.A.C. 5:92-14, provided that no more than 25% of the total affordable housing units constructed within the Township shall be age restricted. A request to age restrict housing units may only be granted after the Planning Board or Board of Adjustment has received the consent of the Township Council. In designing its project, the applicant may propose constructing the senior citizen restricted affordable units in the same building or buildings in order to maximize the potential of preserving a more tranquil lifestyle for the senior citizen resident; and to the foregoing extent, the requirement of integration of the affordable units with conventional units is modified.
5.
Low/Moderate Split and Bedroom Distribution of Affordable Housing Units:
(a)
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.
(b)
In each affordable development, at least 50% of the restricted units within each bedroom distribution shall be low-income units.
(c)
Affordable developments that are not age-restricted shall be structured in conjunction with realistic market demands such that: the combined number of efficiency and one-bedroom units is no greater than 20% of the total low- and moderate-income units; at least 30% of all low- and moderate-income units are two-bedroom units; at least 20% of all low- and moderate-income units are three-bedroom units; and, the remainder, if any, may be allocated at the discretion of the developer.
(d)
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. The standard may be met by having all one-bedroom units or by having a two-bedroom unit for each efficiency unit.
6.
Location and Design. Low- and moderate-income housing shall be designed in accordance with the following provisions:
(a)
The low- and moderate-income housing units shall be sited on the tract in locations at least as accessible to common open space and community facilities as market-priced dwelling units. Rental units may be concentrated for ownership and management unit reasons.
(b)
The exterior design of the low- and moderate-income housing units shall be harmonious in scale, texture, and materials with the market-priced units on the tract.
(c)
Deed Restrictions. Developers of housing units for low- and moderate-income households shall enter into a written agreement, binding on all successors-in-interest, in accordance with current COAH regulations or Court requirements for Resale/Rental Control, at the time of sale, resale, rental or re-rental regardless of the availability of Federal, State, County or Township subsidy programs.
(d)
In inclusionary developments, to the extent possible, low- and moderate-income units shall be integrated with the market units.
7.
Utilities.
(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 DCA for its Section 8 program.
8.
Accessibility Requirements.
(a)
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:
(1)
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 this subsection can be satisfied, then an interior accessible route of travel must be provided between stories within an individual unit, but if all of the foregoing requirements in this subsection 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 Berkeley Township has collected funds from the developer sufficient to make 10% of the adaptable entrances in the development accessible:
(i)
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.
(ii)
To this end, the builder of restricted units shall deposit funds within the Berkeley Township Affordable Housing Trust Fund sufficient to install accessible entrances in 10% of the affordable units that have been constructed with adaptable entrances.
(iii)
The funds deposited under the terms of this subsection shall be used by Berkeley Township 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.
(iv)
The developer of the restricted units shall submit a design plan and cost estimate to the Construction Official of Berkeley Township for the conversion of adaptable to accessible entrances.
(v)
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 Berkeley Township Affordable Housing Trust Fund.
9.
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.
§ 35-118.1 R-100 PRRC Overlay Zone.
[Ord. No. 94-29 § 118-17.6]
a.
Permitted Uses.
1.
1. All uses permitted in the schedule, entitled, "Mount Laurel Compliance Overlay Zone Districts, Permitted Use List" included as an attachment to this chapter.
[Editor's Note: See Schedule 2 of Attachment 4, which is included as an attachment to this chapter.
b.
Permitted Accessory Uses.
1.
Attached or detached garages or covered off-street parking structures.
2.
Fences.
3.
Swimming pools.
4.
Signs.
5.
Other customary accessory uses and buildings which are clearly incidental to the principal use and building.
6.
Off-street parking facilities.
7.
Clubhouse or community building.
8.
Recreational facilities and open space.
9.
Fire and first aid stations.
10.
Maintenance facilities, administration offices, sewer pumping stations, stormwater management facilities, and utilities.
11.
Satellite dish antennas, or other similar units or structures for the sending and/or receiving of satellite signals, provided that the satellite dish antenna shall be permitted in conjunction with a homeowners association or similar community organization for the use of the community and not for individual homeowner use.
c.
Conditional Uses.
1.
All uses permitted in the attached schedule entitled, "Mount Laurel Compliance, Permitted Use List" and identified as conditional uses.
[Editor's Note: See Schedule 2 of Attachment 4, which is included as an attachment to this chapter.
d.
Area, Yard and Building Requirements.
1.
As set forth in the attached schedules entitled, "Mount Laurel Compliance Overlay Zone Districts, Schedule and Requirements and Standards for Dwelling Unit Types."
[Editor's Note: See Schedule 4 of Attachment 4, which is included as an attachment to this chapter.
e.
Density.
1.
The R-100 PRRC Overlay Zone shall permit any age-restricted development at a density not to exceed four dwelling units for each acre of gross land area provided that the density of the net land area shall not exceed eight dwelling units for each acre. Net land area shall be obtained by subtracting from the gross land area any portion of the tract designated as wetlands, pre-existing open waters and any areas required to be dedicated for the widening of preexisting public streets.
f.
Special Provisions.
1.
100% of all dwelling units shall be single family detached dwellings.
2.
No individual on-site wells or sewage disposal systems shall be permitted. All development shall be connected to an approved and functioning central water and sanitary sewage treatment system.
4.
A homeowners' association or other similar organization shall be established for the ownership and maintenance of any private roads, open space, recreational improvements and other common areas or buildings for the benefit of owners or residents of the development. With the exception of those roads which are required to be dedicated for public use, all roads are to remain private and the property and responsibility of a homeowners' association or analogous body. Provisions shall be made for the permanent maintenance of private roadways located within a PRRC so that such roadways shall not become the obligation of the Township.
5.
There shall be at least one clubhouse or community building. There shall be at least six square feet of clubhouse building space provided for each proposed dwelling unit. The clubhouse shall be completed and in operation before the one hundredth dwelling unit has been completed and a certificate of occupancy issued therefore.
6.
Each PRRC shall provide a site or sites for recreational facilities for the use of its residents. Residential facilities shall include, but shall not be limited to, such facilities as shuffleboard lanes, barbecue grills, picnic benches and indoor recreation facilities. Swimming pools, not less than 2,500 square feet in size, shall be required where there are no beach facilities available to the residents within 1/4 mile of the site. All grounds surrounding recreational and administrative facilities shall be appropriately landscaped and shall be provided with adequate walkways. Underground irrigation shall be installed for such areas.
7.
Ownership of the residential units and the area comprising a PRRC may be in accordance with the provisions of N.J.S.A. 46:8B-1 et seq., or the ownership may be as is commonly referred to as "fee simple" with open space to be maintained through assessment against property owners within the confines of the community.
8.
Where a PRRC is a conventional fee simple development, covenants, restrictions, final subdivision plats and plot plans shall indicate that recreational areas and green areas shall be dedicated to a homeowners' association or analogous body.
§ 35-118.2 MLC/W Overlay Zone.
[Ord. No. 94-29 § 118-17.7]
a.
Permitted Uses.
1.
All uses permitted in the attached schedule entitled, "Mount Laurel Compliance Overlay Zone Districts, Permitted Use List."
[Editor's Note: See Schedule 2 of Attachment 4, which is included as an attachment to this chapter.
b.
Permitted Accessory Uses.
1.
Off-street parking facilities.
2.
Attached or detached garages or covered off-street parking structures.
3.
Fences.
4.
Swimming pools.
5.
Signs.
6.
Other customary accessory uses and buildings which are clearly incidental to the principal use and building.
7.
Maintenance facilities, administration offices, pumping stations, stormwater management facilities and utilities.
8.
Recreational facilities and open space.
9.
Satellite dish antennas, or other similar units or structures for the sending and/or receiving of satellite signals, provided that the satellite dish antenna shall be permitted in conjunction with a homeowners' association or similar community organization for the use of the community and not for individual homeowner use.
c.
Conditional Uses.
1.
All uses permitted in the attached schedule entitled, "Mount Laurel Compliance, Permitted Use List" and identified as conditional uses.
[Editor's Note: See Schedule 2 of Attachment 4, which is included as an attachment to this chapter.
d.
Area, Yard and Building Requirements.
1.
As set forth in the schedules entitled, "Mount Laurel Compliance Overlay Zone Districts, Schedule of Requirements and Standards for Dwelling Unit Types" included as attachments to this chapter.
[Editor's Note: See Schedule 4 of Attachment 4, which is included as an attachment to this chapter.
e.
Density.
1.
The MLC/W Overlay Zone shall permit development at a density not to exceed 1/2 dwelling units for each acre of gross land area provided that the density of the net land area shall not exceed four dwelling units for each acre. Net land area shall be obtained by subtracting from the gross land area any portion of the tract designated as wetlands, preexisting open waters and any areas required to be dedicated for the widening of preexisting public streets.
f.
Special Provisions.
1.
In the event regulatory review of any proposed residential development or another event shall cause the developer to decide to transfer any or all of the residential units from the MLC/W Zone to another Mount Laurel Compliance Overlay Zone District in accordance with an agreement between the Township and the developer, then the uses which shall continue to be permitted on the parcel from which units are transferred shall be as follows:
(a)
A marina for the use of the general public and/or the residents of one or more residential developments being constructed by the developer in another Mount Laurel Compliance Overlay Zone District in accordance with an agreement between the Township and the developer; and/or
(b)
Passive recreation facilities for the general public; and/or
(c)
Public uses or buildings.
§ 35-118.3 MLC/L Overlay Zone.
[Ord. No. 94-29 § 118-17.8]
a.
Permitted Uses.
1.
All uses permitted in the attached schedule entitled, "Mount Laurel Compliance Overlay Zone Districts, Permitted Use List."
[Editor's Note: See Schedule 2 of Attachment 4, which is included as an attachment to this chapter.
b.
Permitted Accessory Uses.
1.
Off-street parking facilities.
2.
Attached or detached garages or covered off-street parking structures.
3.
Fences.
4.
Swimming pools.
5.
Signs.
6.
Other customary accessory uses and buildings which are clearly incidental to the principal use and building.
7.
Maintenance facilities, administration offices, pumping stations, stormwater management facilities and utilities.
8.
Recreational facilities and open space.
9.
Satellite dish antennas, or other similar units or structures for the sending and/or receiving of satellite signals, provided that the satellite dish antenna shall be permitted in conjunction with a homeowners' association or similar community organization for the use of the community and not for individual homeowner use.
c.
Conditional Uses.
1.
All uses permitted in the attached schedule entitled, "Mount Laurel Compliance, Permitted Use List" and identified as conditional uses.
[Editor's Note: See Schedule 2 of Attachment 4, which is included as an attachment to this chapter.
d.
Area, Yard and Building Requirements.
1.
As set forth in the schedules entitled, "Mount Laurel Compliance Overlay Zone Districts, Schedule of Requirements and Standards for Dwelling Unit Types" included as an attachment to this chapter.
[Editor's Note: See Schedule 4 of Attachment 4, which is included as an attachment to this chapter.
e.
Density.
1.
The MLC/L Overlay Zone shall permit development at a density not to exceed 2 1/2 dwelling units for each acre of gross land area provided that the density of the net land area shall not exceed 10 dwelling units for each acre. Net land area shall be obtained by subtracting from the gross land area any portion of the tract designated as wetlands, preexisting open waters and any areas required to be dedicated for the widening of preexisting public streets.
f.
Special Provisions.
1.
Where common open space is included in the development and 100 or more dwelling units are proposed, improved recreation facilities shall be provided. The actual area of the improvements shall be calculated at the rate of 100 square feet of active recreation per each dwelling unit. The type of improved recreation facilities shall include, but not be limited to, tennis courts, basketball courts, swimming pool, multi-purpose play field, jogging track, developed tot lot or pocket park, etc. The type of improved recreation facility proposed shall be appropriate to the marketing plan for the development.
§ 35-118.4 MLC/RMF Overlay Zone.
[Ord. No. 94-29 § 118-17.9]
a.
Permitted Uses.
1.
All uses permitted in the attached schedule entitled, "Mount Laurel Compliance Overlay Zone Districts, Permitted Use List."
[Editor's Note: See Schedule 2 of Attachment 4, which is included as an attachment to this chapter.
b.
Permitted Accessory Uses.
1.
Off-street parking facilities.
2.
Attached or detached garages or covered off-street parking structures.
3.
Fences.
4.
Swimming pools.
5.
Signs.
6.
Other customary accessory uses and buildings which are clearly incidental to the principal use and building.
7.
Maintenance facilities, administration offices, pumping stations, stormwater management facilities and utilities.
8.
Recreational facilities and open space.
9.
Satellite dish antennas, or other similar units or structures for the sending and/or receiving of satellite signals, provided that the satellite dish antenna shall be permitted in conjunction with a homeowners' association or similar community organization for the use of the community and not for individual homeowner use.
c.
Conditional Uses.
1.
All uses permitted in the attached schedule entitled, "Mount Laurel Compliance, Permitted Use List" and identified as conditional uses.
[Editor's Note: See Schedule 2 of Attachment 4, which is included as an attachment to this chapter.
d.
Area, Yard and Building Requirements.
1.
As set forth in the attached schedules entitled, "Mount Laurel Compliance Overlay Zone Districts, Schedule of Requirements and Standards for Dwelling Unit Types."
[Editor's Note: See Schedule 4 of Attachment 4, which is included as an attachment to this chapter.
e.
Density.
1.
The MLC/RMF Overlay Zone shall permit development at a density not to exceed six dwelling units for each acre of gross land area provided that the density of the net land area shall not exceed 10 dwelling units for each acre. Net land area shall be obtained by subtracting from the gross land area any portion of the tract designated as wetlands, preexisting open waters and any areas required to be dedicated for the widening of preexisting public streets.
f.
Special Provisions.
1.
Where common open space is included in the development and 100 or more dwelling units are proposed, improved recreation facilities shall be provided. The actual area of the improvements shall be calculated at the rate of 100 square feet of active recreation per each dwelling unit. The type of improved recreation facilities shall include, but not be limited to, tennis courts, basketball courts, swimming pool, multi-purpose play field, jogging track, developed tot lot or pocket park, etc. The type of improved recreation facility proposed shall be appropriate to the marketing plan for the development.
§ 35-118.5 R-100T Overlay Zone.
[Ord. No. 94-29 § 118-17.10]
a.
Permitted Uses.
1.
All uses permitted in the attached schedule entitled, "Mount Laurel Compliance Overlay Zone Districts, Permitted Use List."
[Editor's Note: See Schedule 2 of Attachment 4, which is included as an attachment to this chapter.
b.
Permitted Accessory Uses.
1.
Off-street parking facilities.
2.
Attached or detached garages or covered off-street parking structures.
3.
Fences.
4.
Swimming pools.
5.
Signs.
6.
Other customary accessory uses and buildings which are clearly incidental to the principal use and building.
7.
Maintenance facilities, administration offices, pumping stations, stormwater management facilities and utilities.
c.
Conditional Uses.
1.
All uses permitted in the attached schedule entitled, "Mount Laurel Compliance, Permitted Use List" and identified as conditional uses.
[Editor's Note: See Schedule 2 of Attachment 4, which is included as an attachment to this chapter.
d.
Area, Yard and Building Requirements.
1.
As set forth in the attached schedules entitled, "Mount Laurel Compliance Overlay Zone Districts, Schedule of Requirements and Standards for Dwelling Unit Types."
[Editor's Note: See Schedule 4 of Attachment 4, which is included as an attachment to this chapter.
e.
Special Provisions.
1.
Any twin dwelling unit structures shall be constructed on lots having a minimum lot area of 10,000 square feet and frontage and width of 100 feet. The dwellings shall be separated from each other by subdivision of the lot by a line through the common vertical wall between the units, thereby providing a minimum lot area of 5,000 square feet and frontage and width of 50 feet for each unit.
2.
Any twin dwelling units shall be marketed exclusively as affordable housing units in accordance with the provisions of affordable housing, any ordinances the Township adopts to implement its housing element and fair share plan, any requirements of any Judgement of Repose and any agreement involving Lifetime Homes of New Jersey, Inc.
3.
Single-family detached dwellings constructed in this Overlay Zone shall comply with the R-100 Zone District regulations.
§ 35-118.5A R-100/Sanitary Sewer and Water (R-100/SSW) Zone.
[Ord. No. 08-02-OAB § 1]
a.
Permitted Uses.
1.
All uses permitted in the attached schedule entitled, "Mount Laurel Compliance Overlay Zone District, Permitted Use List."
[Editor's Note: See Schedule 2 of Attachment 4, which is included as an attachment to this chapter.
c.
Conditional Uses.
1.
All uses set forth in the attached schedules entitled, "Mount Laurel Compliance Overlay Zone Districts, Schedule of Requirements and Standards for Dwelling Use Types."
[Editor's Note: See Schedule 4 of Attachment 4, which is included as an attachment to this chapter.
d.
Area, Yard and Building Requirements.
1.
As set forth in the attached schedules entitled, "Mount Laurel Compliance Overlay Zone Districts, Schedule of Requirements and Standards for Dwelling Use Types."
[Editor's Note: See Schedule 4 of Attachment 4, which is included as an attachment to this chapter.
e.
Special Provisions.
1.
Single family detached dwellings constructed in this Overlay Zone shall comply with the R-100 Zone District regulations except that a single family detached dwelling may be constructed on lots having a minimum lot area of 6,000 square feet and frontage and width of a minimum of 60 feet as long as any lot on which a single family detached dwelling of a minimum of 6,000 square feet is serviced or to be serviced by sanitary sewer and a potable public water service.
f.
R-100 Zone/Sanitary Sewer and Water (R-100/SSW Zone).
1.
Overlays the existing R-100 Zone in the Manitou Park Section of the Township. It contains those land areas in Manitou Park from First Street to Eleventh Street between Fifth Avenue and the Township boundary at South Toms River Borough; and from Eleventh Street to Thirteenth Street between Second Avenue and the Township boundary at South Toms River Borough. It also contains those land areas in Manitou Park from Eleventh Street to the westerly end of Manitou Park between Fifth Avenue and Second Avenue and from Thirteenth Street to the westerly end of Manitou Park between Second Avenue and First Avenue.
§ 35-118.6 MLC/R-150/50 Zone.
[Ord. No. 94-29 § 118-17.11]
a.
Permitted Uses.
1.
All uses permitted in the attached schedule entitled, "Mount Laurel Compliance Overlay Zone Districts, Permitted Use List."
[Editor's Note: See Schedule 2 of Attachment 4, which is included as an attachment to this chapter.
b.
Permitted Accessory Uses.
1.
Attached or detached garages or covered off-street parking structures.
2.
Fences.
3.
Swimming pools.
4.
Signs.
5.
Other customary accessory uses and buildings which are clearly incidental to the principal use and building.
6.
Off-street parking facilities.
7.
Recreational facilities and open space.
8.
Fire and first aid stations.
9.
Maintenance facilities, administration offices, pumping stations, stormwater management facilities and utilities.
c.
Conditional Uses.
1.
All uses permitted in the attached schedule entitled, "Mount Laurel Compliance, Permitted Use List" and identified as conditional uses.
[Editor's Note: See Schedule 2 of Attachment 4, which is included as an attachment to this chapter.
d.
Area, Yard and Building Requirements.
1.
As set forth in the attached schedules entitled, "Mount Laurel Compliance Overlay Zone Districts, Schedule of Requirements and Standards for Dwelling Unit Types."
[Editor's Note: See Schedule 4 of Attachment 4, which is included as an attachment to this chapter.
e.
Density.
1.
The MLC/R-150/50 Zone shall permit only single family detached units at a density not to exceed five dwelling units for each acre of gross land area provided that the density of the net land area shall not exceed eight dwelling units for each acre. However, in no event shall the developer be permitted to construct more than 136 units.
f.
Special Provisions.
1.
100% of all dwelling units shall be single family detached dwellings.
2.
All interior lots shall have a minimum lot area of 5,000 square feet with 50 feet of lot width. All corner lots shall have a minimum lot area of 6,500 square feet with 65 feet of lot width.
3.
The minimum lot depth shall be 100 feet.
4.
The minimum front setback shall be 25 feet.
5.
The minimum rear setback shall be 25 feet, provided that, where the rear lot line of one lot is coincident with any lot line of another lot intended to contain a dwelling unit, in which case it shall be 35 feet.
6.
The minimum side yard shall be five feet on one side and the two side yards on one lot shall total at least 15 feet.
7.
The maximum lot coverage by buildings shall be 35%.
8.
The maximum building height shall be 35 feet.
9.
The minimum floor area shall be: one bedroom - 800 square feet; two bedroom - 950 square feet; three or more bedrooms - 1,100 square feet.
10.
A buffer area of not less than 20 feet in width shall be maintained within the tract adjacent to lot lines which are also street lines of pre-existing public streets. The buffer shall contain only access roads and landscaping but may be deed restricted area within individual lots. If included in individual lots, buffer area shall not be included in calculating lot area or depth.
11.
Internal roads whether public or private shall have a cartway width of not less than 28 feet and roads proposed to be public roads shall have minimum right-of-way of 40 feet.
12.
All units are to initially be offered on a fee simple, for sale basis.
13.
Open space shall be provided within the development at a minimum ratio of 100 square feet for each dwelling unit. At least 1/2 of the required open space shall be devoted to recreation facilities appropriate to the developer's marketing program.
14.
All land areas not included in residential lots, public rights-of-way or transferred to another public ownership shall be retained by the developer or transferred to an organization responsible for its maintenance and formed in accordance with the provisions of the Nonprofit Corporation Statute (Title 15) of the State of New Jersey. A homeowners' association or other similar organization shall be established for the ownership and maintenance of any private roads, open space, recreational improvements and other common areas or buildings for the benefit of owners or residents of the development. With the exception of those roads which are required to be dedicated for public use, all roads are to remain private and the property and responsibility of a homeowners' association or analogous body. Provisions shall be made for the permanent maintenance of private roadways, if any, so that such roadways shall not become the obligation of the Township.
15.
11% of all units to be constructed shall be Mount Laurel low and moderate income units or the developer shall fund an equal number of RCA units not to exceed 15 units. RCAs shall be funded by the developer by paying monies to the Township at a rate of $17,500 by 11% by the number of units approved by the Board. Monies shall be used to promote affordable housing purposes, including but not limited to, an indigenous need rehabilitation program.
16.
In addition to any monies the developer may pay for RCAs, the developer shall contribute $13,600 to the Township for recreational and first aid purposes or such other purposes as the Township may deem appropriate.
§ 35-118.8 Neighborhood Professional Office Overlay Zone (NPO).
[Ord. No. 94-29 § 118-17.13]
a.
Permitted Uses.
1.
Professional offices for members of a recognized profession which shall include members of a medical profession, accountants, lawyers, architects, engineers, surveyors, artists, authors, real estate brokers, musicians or other similar licensed professional occupations, provided that the practice of any other occupation shall not adversely affect the safe and comfortable enjoyment of property rights in any zone to any greater extent than the professional occupations cited herein.
b.
Permitted Accessory Uses.
1.
Off-street parking facilities.
2.
Signs.
3.
Fences.
4.
Other customary accessory uses and buildings which are clearly incidental to the principal use and building.
5.
Pumping stations, stormwater management facilities and utilities.
6.
Satellite dish antennas, or other similar units or structures for the sending and/or receiving of satellite signals, provided that one satellite dish antenna shall be permitted in conjunction with an entire building, and not for each individual tenant therein.
7.
Maintenance facilities, administration offices, pumping stations, stormwater management facilities and utilities.
d.
Area, Yard and Building Requirements.
1.
As set forth in the attached schedule entitled, "Mount Laurel Compliance Overlay Zone Districts."
[Editor's Note: Said Schedule is included as an attachment to this chapter.
§ 35-119 STREET CLASSIFICATION AND IMPROVEMENT STANDARDS FOR MOUNT LAUREL COMPLIANCE OVERLAY ZONES.
[Ord. No. 94-29 § 118-17.19]
a.
Streets within all Mount Laurel Compliance Overlay Zones shall conform to standards that will result in a well-planned community, protect the health and safety of the residents, and provide a desirable living environment without unnecessarily adding to development costs.
1.
The arrangement of streets shall conform to the circulation plan of the master plan.
2.
For streets not shown on the master plan the arrangement shall provide for the appropriate extension of existing streets.
3.
Streets shall be arranged so as to discourage through traffic and provide for maximum privacy.
4.
Streets may be either dedicated to the public use or private in nature, at the option of the Board. In any event, same shall be constructed in accordance with the pavement thickness standards of Article X of the Land Development Chapter of the Township of Berkeley.
5.
With the exception of those roads which are required to be dedicated for public use by the Board, or the County of Ocean, all roads are to remain private roadways and are to be the property and responsibility of a homeowners' association or analogous body for the care and maintenance of the roadways. Provisions shall be made for the permanent maintenance of private roadways so that such roadways shall not become the obligation of the Township of Berkeley.
b.
Street Hierarchy.
1.
Streets shall be classified in a street hierarchy system with the design tailored to function in accordance with the following definitions.
(a)
MINOR RESIDENTIAL STREET — The lowest order of residential streets, these streets provide frontage for access to lots or units and carry traffic having origin and destination on the street itself. They are designed to carry the least amount of traffic at the lowest speeds. Housing units front this street type. A minor residential street will have a maximum ADT level of 500 based on average weekday trip generation rates for single family detached units of 10.0, 6.6 for townhouse units, 4.0 for low rise structures and 3.5 for age restricted units.
(b)
CULS-DE-SAC — A street with one means of ingress and egress and having a turnaround at its terminus. Culs-de-sac shall be classified and designed pursuant to anticipated ADT levels: A residential access cul-de-sac will have a maximum ADT level of 250, and a residential sub-collector will have a maximum ADT level of 500 based on average weekday trip generation rates for single family detached units of 10.0, 6.6 for townhouse units, 4.0 for low rise structures and 3.5 for age restricted units.
(c)
RESIDENTIAL SUB-COLLECTOR — A middle order street, these streets provide frontage for access to lots and carry traffic of adjoining residential access streets. Residential subcollectors are designed to carry somewhat higher traffic volumes with traffic limited to motorists having origin or destination within the immediate neighborhood. They are not intended to interconnect adjoining neighborhoods or subdivisions and shall not carry regional through traffic.
Sub-collectors shall be designed so that no section conveys an ADT greater than 500. Each half of a loop subcollector may be classified as a single sub-collector street, but the total traffic volume conveyed on the loop street shall not exceed 1,000 ADT, nor shall it exceed 500 ADT at any point of traffic concentration. Maximum ADT levels shall be calculated based on average weekday trip generation rates for single family detached units of 10.0, 6.6 for townhouse units, 4.0 for low rise structures and 3.5 for age restricted units.
(d)
RESIDENTIAL COLLECTOR — The highest order of residential street these streets conduct and distribute traffic between lower order streets and higher order streets, such as arterials. They carry the largest volume of traffic at higher speeds. Their function is to promote free traffic flow; therefore, on-street parking is prohibited, and direct access to homes from this level of street shall be avoided.
Residential collector streets shall be designed so that no section conveys an ADT greater than 3,000. Maximum ADT levels shall be calculated based on average weekday trip generation rates for single family detached units of 10.0, 6.6 for townhouse units, 4.0 for low rise structures and 3.5 for age restricted units.
2.
The street hierarchy system shall be defined by road function and average daily traffic (ADT), calculated by trip generation rates prepared by the Institute of Transportation Engineers and set forth in the definitions. Trip generation rates from other sources may be used if the applicant demonstrates that these sources better reflect local conditions.
3.
Each residential street shall be classified and designed for its entire length to meet the standards for one of the street types identified by definition and outlined in the schedule entitled, "Street Classification System and Design Requirements" included as an attachment to this chapter.
[Editor's Note: See Schedule 5 of Attachment 4.]
4.
The applicant shall demonstrate to the Board's satisfaction that the distribution of traffic to the proposed street system will not exceed the ADT thresholds for any proposed street type.
§ 35-120 AFFIRMATIVE MARKETING.
[Ord. No. 94-29 § 118-17.20; Ord. No. 2017-14-OAB § 5]
a.
The marketing of all low- and moderate-income units shall be done in accordance with the Berkeley Township Affirmative Marketing Plan, which was adopted in 2017 by Resolution of the Mayor and Council.
§ 35-121 SETTLEMENT AGREEMENT OBLIGATION.
[Ord. No. 94-29 § 118-17.21]
a.
Notwithstanding anything herein to the contrary, any inclusionary developer must fully comply with any and all requirements of the Settlement Agreement.
b.
Unless specifically excepted by ordinance, in the event there is a conflict between any Township ordinance and the Settlement Agreement, the provisions of the Settlement Agreement shall apply and prevail over any ordinance provision.
§ 35-122 MANDATORY DEVELOPMENT FEES. [1]
[1]
Editor's Note: Prior ordinance history includes portions of Ordinances Nos. 94-55, 05-37 and 08-33.
§ 35-122.1 Purpose.
[Ord. No. 09-29-OA § 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 (the Act), N.J.S.A. 52:27d-301 et seq. and the State Constitution, subject to the Council on Affordable Housing's (COAH's) adoption of rules.
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 a COAH-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 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.
§ 35-122.2 Basic Requirements.
§ 35-122.3 Definitions.
[Ord. No. 09-29-OA § 1]
a. AFFORDABLE HOUSING DEVELOPMENT COAH OR THE COUNCIL DEVELOPER DEVELOPMENT FEE 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 consideration in the State.
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 money paid by a developer for the improvement of property as permitted in N.J.A.C. 5:97-8.3.
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 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.
§ 35-122.4 Residential Development Fees.
[Ord. No. 09-29-OA § 1; Ord. No. 2017-12-OAB]
a.
Imposed Fees.
1.
All residential developers of new subdivisions or residential developments creating two or more new residential dwellings, except for developers of the types of development specifically listed in the following subsections or exempted below, shall pay a fee of 1.5% of the equalized assessed value for residential development provided no increased density is permitted.
2.
Residential developers creating a new single or two-family dwelling on an existing lot shall pay a fee of 1% of the equalized assessed value for residential development provided no increased density is permitted.
3.
Owners of existing residential dwelling shall pay a development fee of 1% when a renovation or expansion results in an increase of equalized assessed value, provided that the dwelling is owner-occupied. When the dwelling is not owner-occupied, the development fee paid when a renovation or expansion results in an increase of equalized assessed value shall be 1.5%.
4.
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 may be required to pay a development fee of 6% of the equalized assessed value for each additional unit that 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.
b.
Eligible Exactions, Ineligible Exactions and Exemptions for Residential Development.
1.
Affordable housing developments, developments where the developer is providing for the construction of affordable units elsewhere in the municipality, and developments where the developer has made a payment in lieu of on-site construction of affordable units shall be exempt from development fees.
2.
Developments that have received preliminary or final site plan approval prior to the adoption of a municipal development fee ordinance shall be exempt from development fees, unless the developer seeks a substantial change in the approval. Where a site plan approval does not apply, a zoning and/or building permit shall be synonymous with preliminary or final site plan approval for this purpose. The fee percentage shall be vested on the date that the building permit is issued.
3.
Owner-occupied residential structures demolished as a result of a fire, flood, or natural disaster and replaced with a substantially similar residence shall be exempt from paying a development fee. If the new owner-occupied residential structure is not substantially similar to the prior, demolished structure, then the owner shall pay a development fee for the net increase in equalized assessed value.
4.
Development that expands an existing structure shall pay a development fee. The development fee shall be calculated based on the increase in the equalized assessed value of the improved structure.
§ 35-122.5 Nonresidential Development Fees.
[Ord. No. 09-29-OA § 1]
a.
Imposed Fees.
1.
All nonresidential developers, except for developers of the types of development specifically exempted, shall pay a fee equal to 2.5% of the equalized assessed value of the land and improvements, for all new nonresidential construction 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 2.5% of the increase in equalized assessed value resulting from any additions to existing structures to be used for nonresidential purposes.
3.
Development fees shall be imposed and collected when an existing structure is demolished and replaced. The development fee of 2.5% shall be calculated on the difference between the equalized assessed value of the 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 2.5% development fee, unless otherwise exempted below.
2.
The 2.5% fee shall not apply to an increase in equalized assessed value resulting from alterations, change in use within existing footprint, reconstruction, renovations and repairs.
3.
Nonresidential developments shall be exempt from the payment of nonresidential development fees in accordance with the exemptions required pursuant to P.L. 2008, c.46, as specified in the Form N-RDF "State of New Jersey 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 Berkeley Township as a hen against the real property of the owner.
§ 35-122.6 Collection Procedures.
[Ord. No. 09-29-OA § 1]
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 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 non-residential 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 notifies the local assessor of any and all requests for the scheduling of a final inspection on property which is subject to a development fee.
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 Berkeley Township 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.
50% 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 Berkeley Township. Appeals from a determination of the Board may be made to the tax court in accordance with the provisions of the State Tax Uniform Procedure Law, N.J.S.A. 54:48-1 et seq. within 90 days after the date of such determination. Interest earned on amounts escrowed shall be credited to the prevailing party.
2.
A developer may challenge nonresidential development fees imposed by filing a challenge with the Director of the Division of Taxation. Pending a review and determination by the Director, which shall be made within 45 days of receipt of the challenge, collected fees shall be placed in an interest-bearing escrow account by Berkeley Township. 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.
§ 35-122.7 Affordable Housing Trust Fund.
[Ord. No. 09-29-OA § 1]
a.
There is hereby created a separate, interest-bearing housing trust fund to be maintained by the 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 adaptable entrances in a townhouse or other multistory attached development accessible;
3.
Rental income from municipally operated units;
4.
Repayments from affordable housing program loans;
5.
Recapture funds;
6.
Proceeds from the sale of affordable units; and
7.
Any other funds collected in connection with Berkeley Township's affordable housing program.
c.
Within seven days from the opening of the trust fund account, Berkeley Township shall provide COAH with written authorization, in the form of a three-party escrow agreement between the municipality, the bank, 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.
§ 35-122.8 Use of Funds.
[Ord. No. 09-29-OA § 1]
a.
The expenditure of all funds shall conform to a spending plan approved by COAH. Funds deposited in the housing trust fund may be used for any activity approved by COAH to address the Berkeley Township'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 Berkeley Township 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 of the affordability assistance portion of development fees collected shall be used to provide affordability assistance to those households earning 30% or less of median income by region.
1.
Affordability assistance programs may include down payment assistance, security deposit assistance, low interest loans, rental assistance, assistance with homeowners association or condominium fees and special assessments, and assistance with emergency repairs.
2.
Affordability assistance to households earning 30% or less of median income may include buying down the cost of low- or moderate-income units in the municipal Fair Share Plan to make them affordable to households earning 30% or less of median income.
3.
Payments in lieu of constructing affordable units on site and funds from the sale of units with extinguished controls shall be exempt from the affordability assistance requirement.
d.
Berkeley Township 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 20% of all revenues collected from development fees, may be expended on administration, including, but not limited to, salaries and benefits for municipal employees or consultant fees necessary to develop or implement a new construction program, a Housing Element and Fair Share Plan, and/or an affirmative marketing program. In the case of a rehabilitation program, no more than 20% of the revenues collected from development fees shall be expended for such administrative expenses. Administrative funds may be used for income qualification of households, monitoring the turnover of sale and rental units, and compliance with COAH's 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.
§ 35-122.9 Monitoring.
[Ord. No. 09-29-OA § 1]
a.
Berkeley Township shall complete and return to COAH all monitoring forms included in monitoring requirements related to the collection of development fees from residential and nonresidential developers, payments in lieu of constructing affordable units on site, funds from the sale of units with extinguished controls, barrier free escrow funds, rental income, repayments from affordable housing program loans, and any other funds collected in connection with Berkeley Township's housing program, as well as to the expenditure of revenues and implementation of the plan certified by COAH. All monitoring reports shall be completed on forms designed by COAH.
§ 35-122.10 Ongoing Collection of Fees.
[Ord. No. 09-29-OA § 1]
a.
The ability for Berkeley Township to impose, collect and expend development fees shall expire with its substantive certification unless Berkeley Township has filed an adopted Housing Element and Fair Share Plan with COAH, has petitioned for substantive certification, and has received COAH's approval of its development fee ordinance. If Berkeley Township fails to renew its ability to impose and collect development fees prior to the expiration of substantive certification, 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). Berkeley Township 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 judgment of compliance, nor shall Berkeley Township retroactively impose a development fee on such a development. Berkeley Township shall not expend development fees after the expiration of its substantive certification or judgment of compliance.
§ 35-123 MUNICIPAL HOUSING LIAISON AND ADMINISTRATIVE AGENT. [1]
[1]
Editor's Note: Prior ordinance history: Ordinance Nos. 07-22-OAB, 07-34-OAB.
§ 35-123.1 Municipal Housing Liaison.
[Ord. No. 2017-14-OAB § 6]
a.
Berkeley Township shall appoint a specific municipal employee to serve as a Municipal Housing Liaison responsible for administering the affordable housing program, including affordability controls, the Affirmative Marketing Plan, monitoring and reporting, and, where applicable, supervising any contracted Administrative Agent. Berkeley Township shall adopt an ordinance creating the position of Municipal Housing Liaison. Berkeley Township shall adopt a resolution appointing a Municipal Housing Liaison. The Municipal Housing Liaison shall be appointed by the Governing Body and may be a full or part time municipal employee. The Municipal Housing Liaison shall be approved by COAH, its successor entity, or 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 Berkeley Township, including the following responsibilities which may not be contracted out to the Administrative Agent:
1.
Serving as Berkeley Township's primary point of contact for all inquiries from the State, affordable housing providers, Administrative Agents and interested households;
2.
Monitoring the status of all restricted units in Berkeley Township's Fair Share Plan;
3.
Compiling, verifying and submitting annual monitoring reports as may be required by COAH, its successor entity, or the Court;
4.
Coordinating meetings with affordable housing providers and Administrative Agents, as needed; and
5.
Attending continuing education opportunities on affordability controls, compliance monitoring and affirmative marketing at least annually and more often as needed.
c.
Subject to the approval of COAH, its successor entity, or the Court, Berkeley Township shall designate one or more Administrative Agent(s) to administer newly constructed affordable units in accordance with the UHAC. An Operating Manual for each affordable housing program shall be provided by the Administrative Agent(s) to be adopted by resolution of the Governing Body and subject to approval of COAH, its successor entity, or the Court. The Operating Manual(s) shall be available for public inspection in the office of the Township Clerk, in the office of the Municipal Housing Liaison, and in the office(s) of the Administrative Agent(s). The Municipal Housing Liaison shall supervise the contracting Administrative Agent(s).
§ 35-123.2 Administrative Agent.
[Ord. No. 2017-14-OAB § 6]
a.
The Administrative Agent shall be an independent entity serving under contract and reporting to the municipality. 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 the UHAC, including those set forth in Sections 5:80-26.14, 16 and 18 thereof, which includes:
1.
Affirmative Marketing:
(a)
Conducting an outreach process to affirmatively market affordable housing units in accordance with the Affirmative Marketing Plan of Berkeley Township and the provisions of N.J.A.C. 5:80-26.15; and
(b)
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.
2.
Household Certification.
(a)
Soliciting, scheduling, conducting and following up on interviews with interested households;
(b)
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;
(c)
Providing written notification to each applicant as to the determination of eligibility or non-eligibility;
(d)
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.;
(e)
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; and
(f)
Employing a random selection process as provided in the Affirmative Marketing Plan of Berkeley Township when referring households for certification to affordable units.
3.
Affordability Controls:
(a)
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;
(b)
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;
(c)
Ensuring that the removal of the deed restrictions and cancellation of the mortgage note are effectuated and properly filed with the Ocean County Register of Deeds or Ocean County Clerk's office after the termination of the affordability controls for each restricted unit;
(d)
Communicating with lenders regarding foreclosures; and
(e)
Ensuring the issuance of continuing certificates of occupancy or certifications pursuant to N.J.A.C. 5:80-26.10.
4.
Resales and Rerentals.
(a)
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
(b)
Instituting and maintaining an effective means of communicating information to low- and moderate-income households regarding the availability of restricted units for resale or rerental.
5.
Processing Requests from Unit Owners.
(a)
Reviewing and approving requests for determination from owners of restricted units who wish to take out home equity loans or refinance during the term of their ownership that the amount of indebtedness to be incurred will not violate the terms of this article;
(b)
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;
(c)
Notifying the municipality of an owner's intent to sell a restricted unit; and
(d)
Making determinations on requests by owners of restricted units for hardship waivers.
6.
Enforcement.
(a)
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;
(b)
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;
(c)
The posting annually in all rental properties, including two-family homes, of a notice as to the maximum permitted rent together with the telephone number of the Administrative Agent where complaints of excess rent or other charges can be made;
(d)
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;
(e)
Establishing a program for diverting unlawful rent payments to the municipality's Affordable Housing Trust Fund; and
(f)
Creating and publishing a written operating manual for each affordable housing program administered by the Administrative Agent, to be approved by the Township Committee and COAH, its successor entity, or the Court, setting forth procedures for administering the affordability controls.
7.
Additional Responsibilities.
(a)
The Administrative Agent shall have the authority to take all actions necessary and appropriate to carry out its responsibilities hereunder;
(b)
The Administrative Agent shall prepare monitoring reports for submission to the Municipal Housing Liaison in time to meet any monitoring requirements and deadlines imposed by COAH, its successor entity, or the Court; and
(c)
The Administrative Agent shall attend continuing education sessions on affordability controls, compliance monitoring, and affirmative marketing at least annually and more often as needed.
b.
Appeals from all decisions of an Administrative Agent appointed pursuant to this section shall be filed in writing with the Court.
§ 35-124 ADMINISTRATION.
[Ord. No. 2017-14-OAB § 7; Ord. No. 2017-25-OAB]
a.
Administration.
1.
Affirmative Marketing Requirements.
(a)
Berkeley Township shall adopt by resolution an Affirmative Marketing Plan, subject to approval of COAH, its successor entity, or 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 that 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 Mercer, Monmouth and Ocean counties.
(d)
The municipality has the ultimate responsibility for adopting the Affirmative Marketing Plan and for the proper administration of the Affirmative Marketing Program, including initial sales and rentals and resales and rerentals. The Administrative Agent designated by the Township 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 (i.e., 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 the County library for each county within the housing region; the Berkeley Township Municipal Building and the Berkeley Public Library; 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.
2.
Occupancy Standards.
(a)
In referring certified households to specific restricted units, the Administrative Agent shall, to the extent feasible and without causing an undue delay in the occupancy of a unit, strive to:
3.
Control Periods for Restricted Ownership Units and Enforcement Mechanisms.
(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 article for a period of at least 30 years, until Berkeley Township takes action to release the unit from such requirements; prior to such action, a restricted ownership unit must remain subject to the requirements of N.J.A.C. 5:80-26.1, 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 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 Administrative Agent 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 article, 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 hen evidenced by a duly recorded mortgage on the unit.
(e)
The affordability controls set forth in this article shall remain in effect despite the entry and enforcement of any judgment of foreclosure with respect to restricted ownership units.
(f)
A restricted ownership unit shall be required to obtain a Continuing Certificate of Occupancy or a certified statement from the Construction Official stating that the unit meets all Code standards upon the first transfer of title following the removal of the restrictions provided under N.J.A.C. 5:80-26.5(a), as may be amended and supplemented.
4.
Price Restrictions for Restricted Ownership Units, Homeowner Association Fees and Resale Prices.
(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; and
(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.
5.
Buyer Income Eligibility.
(a)
Buyer income eligibility for restricted ownership units shall be in accordance with N.J.A.C. 5:80-26.1, as may be amended and supplemented, such that low-income ownership units shall be reserved for households with a gross household income less than or equal to 50% of median income and moderate-income ownership units shall be reserved for households with a gross household income less than 80% of median income.
(b)
Notwithstanding the foregoing, however, the Administrative Agent may, upon approval by the Township Committee, and subject to the Court's approval, permit moderate-income purchasers to buy low-income units in housing markets if the Administrative Agent determines that there is an insufficient number of eligible low-income purchasers to permit prompt occupancy of the units. All such low-income units to be sold to moderate-income households shall retain the required pricing and pricing restrictions for low-income units.
(c)
A certified household that purchases a restricted ownership unit must occupy it as the certified household's principal residence and shall not lease the unit; provided, however, that the Administrative Agent may permit the owner of a restricted ownership unit, upon application and a showing of hardship, to lease the restricted unit to another certified household for a period not to exceed one year.
(d)
The Administrative Agent shall certify a household as eligible for a restricted ownership unit when the household is a low-income household or a moderate-income household, as applicable to the unit, and the estimated monthly housing cost for the particular unit (including principal, interest, taxes, homeowner and private mortgage insurance and condominium or homeowner association fees, as applicable) does not exceed 33% of the household's eligible monthly income.
6.
Limitations on Indebtedness Secured by Ownership Unit, Subordination.
(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).
7.
Capital Improvements to Ownership Units.
(a)
The owners of restricted ownership units may apply to the Administrative Agent to increase the maximum sales price for the unit on the basis of capital improvements made since the purchase of the unit. Eligible capital improvements shall be those that render the unit suitable for a larger household or that add an additional bathroom. In no event shall the maximum sales price of an improved housing unit exceed the limits of affordability for the larger household.
(b)
Upon the resale of a restricted ownership unit, all items of property that are permanently affixed to the unit or were included when the unit was initially restricted (e.g., 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.
8.
Control Periods for Restricted Rental Units.
(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 article for a period of at least 30 years, until Berkeley Township takes action to release the unit from such requirements. Prior to such action, a restricted rental unit must remain subject to the requirements of N.J.A.C. 5:80-26.1, 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 Ocean County. A copy of the filed document shall be provided to the Administrative Agent within 30 days of the receipt of a Certificate of Occupancy.
(c)
A restricted rental unit shall remain subject to the affordability controls of this article despite the occurrence of any of the following events:
9.
Rent Restrictions for Rental Units, Leases.
(a)
A written lease shall be required for all restricted rental units and tenants shall be responsible for security deposits and the full amount of the rent as stated on the lease. A copy of the current lease for each restricted rental unit shall be provided to the Administrative Agent.
(b)
No additional fees or charges shall be added to the approved rent (except, in the case of units in an assisted living residence, to cover the customary charges for food and services) without the express written approval of the Administrative Agent.
(c)
Application fees (including the charge for any credit check) shall not exceed 5% of the monthly rent of the applicable restricted unit and shall be payable to the Administrative Agent to be applied to the costs of administering the controls applicable to the unit as set forth in this article.
(d)
No rent control ordinance or other pricing restriction shall be applicable to either the market units or the affordable units in any development in which at least 15% of the total number of dwelling units are restricted rental units in compliance with this article.
10.
Tenant Income Eligibility.
(a)
Tenant income eligibility shall be in accordance with N.J.A.C. 5:80-26.13, as may be amended and supplemented, and shall be determined, as follows:
(1)
Very low-income rental units shall be reserved for households with a gross household income less than or equal to 30% of median income;
(2)
Low-income rental units shall be reserved for households with a gross household income less than or equal to 50% of median income; and
(3)
Moderate-income rental units shall be reserved for households with a gross household income less than 80% of median income.
(b)
The Administrative Agent shall certify a household as eligible for a restricted rental unit when the household is a very low-income household, low-income household or a moderate-income household, as applicable to the unit, and the rent proposed for the unit does not exceed 35% (40% for age-restricted units) of the household's eligible monthly income as determined pursuant to N.J.A.C. 5:80-26.16, as may be amended and supplemented; provided, however, that this limit may be exceeded if one or more of the following circumstances exists:
(1)
The household currently pays more than 35% (40% for households eligible for age-restricted units) of its gross household income for rent, and the proposed rent will reduce its housing costs;
(2)
The household has consistently paid more than 35% (40% for households eligible for age-restricted units) of eligible monthly income for rent in the past and has proven its ability to pay;
(3)
The household is currently in substandard or overcrowded living conditions;
(4)
The household documents the existence of assets with which the household proposes to supplement the rent payments; or
(5)
The household documents reliable anticipated third-party assistance from an outside source such as a family member in a form acceptable to the Administrative Agent and the owner of the unit.
(c)
The applicant shall file documentation sufficient to establish the existence of the circumstances enumerated in this subsection with the Administrative Agent, who shall counsel the household on budgeting.
11.
Maximum Rents and Sales Prices:
(a)
In establishing rents and sales prices of affordable housing units, the Administrative Agent shall follow the procedures set forth in UHAC, utilizing the regional income limits established by COAH or a successor entity.
(b)
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.
(c)
The developers and/or municipal sponsors of restricted rental units shall establish at least one rent for each bedroom type for both low-income and moderate-income units, provided that at least 13% of all low- and moderate-income rental units shall be affordable to very low-income households, earning 30% or less of the regional median household income.
(d)
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.
(e)
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:
(1)
A studio shall be affordable to a one-person household;
(2)
A one-bedroom unit shall be affordable to a one and one-half person household;
(3)
A two-bedroom unit shall be affordable to a three-person household;
(4)
A three-bedroom unit shall be affordable to a four and one-half person household; and
(5)
A four-bedroom unit shall be affordable to a six-person household.
(f)
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:
(g)
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 twenty-five (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.
(h)
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.
(i)
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.
(j)
The rent of low- and moderate-income units may be increased annually based on the permitted percentage increase in the Housing Consumer Price Index for the United States. This increase shall not exceed 9% in any one year. Rents for units constructed pursuant to low- income housing tax credit regulations shall be indexed pursuant to the regulations governing low-income housing tax credits.
12.
Alternative Living Arrangements.
(a)
The administration of an alternative living arrangement shall be in compliance with N.J.A.C. 5:93-5.8 and the UHAC, with the following exceptions:
(1)
Affirmative marketing (N.J.A.C. 5:80-26.15), provided, however, that the units or bedrooms may be affirmatively marketed by the provider in accordance with an alternative plan approved by the Court;
(2)
Affordability average and bedroom distribution (N.J.A.C. 5:80-26.3).
(3)
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 the UHAC, unless an alternative commitment is approved by the Court.
(4)
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.
13.
Certificates of Occupancy.
(a)
Certificates of occupancy for developments which include affordable housing units shall be subject to the following additional provisions:
(1)
Phasing Schedule for Inclusionary Development. Affordable housing units shall be built, occupied and receive certificates of occupancy in accordance with the following schedule:
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 |
(b)
No initial occupancy of a low- or moderate-income housing sales unit shall be permitted prior to issuance of a certificate of occupancy, and no certificate of occupancy for initial occupancy of a low- or moderate-income housing sales units shall issue unless there is a written determination by the Administrative Agent that the unit is to be controlled by a deed restriction and mortgage lien as adopted by COAH or successor entity.
(c)
A certificate of reoccupancy for any occupancy of a low- or moderate-income housing sales unit resulting from a resale shall be required, and the Township shall not issue such certificate unless there is a written determination by the Administrative Agent that the unit is to be controlled by the deed restriction and mortgage Hen required by COAH or successor entity.
(d)
The certificate of reoccupancy shall not be required where there is a written determination by the Administrative Agent that controls are allowed to expire or that the repayment option is being exercised pursuant to N.J.A.C. 5:92-12.3.
§ 35-125 ENFORCEMENT OF AFFORDABLE HOUSING REGULATIONS.
[Ord. No. 2017-14-OAB § 8]
a.
Upon the occurrence of a breach of any of the regulations governing the affordable unit by an owner, developer or tenant, the municipality shall have all remedies provided at law or equity, including but not limited to foreclosure, tenant eviction, a requirement for household recertification, acceleration of all sums due under a mortgage, recuperation of any funds from a sale in violation of the regulations, injunctive relief to prevent further violation of the regulations, entry on the premises, and specific performance.
b.
After providing written notice of a violation to an owner, developer or tenant of a low- or moderate-income unit and advising the owner, developer or tenant of the penalties for such violations, the municipality may take the following action(s) against the owner, developer or tenant for any violation that remains uncured for a period of 60 days after service of the written notice:
1.
The municipality may file a court action pursuant to N.J.S.A. 2A:58-11 alleging a violation, or violations of the regulations governing the affordable housing unit. If the owner, developer or tenant is adjudged by the Court to have violated any provision of the regulations governing affordable housing units the owner, developer or tenant shall be subject to one or more of the following penalties, at the discretion of the Court:
(a)
A fine of not more than $500 per day or imprisonment for a period not to exceed 90 days, or both, provided that each and every day that the violation continues or exists shall be considered a separate and specific violation of these provisions and not a continuation of the initial offense;
(b)
In the case of an owner who has rented a low- or moderate-income unit in violation of the regulations governing affordable housing units, payment into the Berkeley Township 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 Hen 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 hens 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 Sheriffs sale.
(b)
The proceeds of the Sheriffs sale shall first be applied to satisfy the First Purchase Money Mortgage Hen and any prior hens 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 Sheriffs sale. In the event that the proceeds from the Sheriffs 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 Sheriffs 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 Sheriffs sale shall not be entitled to any right of redemption.
(d)
If there are no bidders at the Sheriffs 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 hens and crediting the violating owner with an amount equal to the difference between the First Purchase Money Mortgage and any prior hens 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 Sheriffs 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.
§ 35-126 REQUIREMENTS FOR AFFORDABLE HOUSING IN MULTIFAMILY RESIDENTIAL DEVELOPMENTS.
[Ord. No. 2017-13-OAB § 1; Ord. No. 2017-24-OAB § 2]
a.
Purpose. The purpose of these provisions is to implement a mechanism for determining the requirements for affordable housing in multifamily development in accordance with the Berkeley Township Housing Plan Element and Fair Share Plan.
b.
Applicability. These requirements shall apply to all approvals for multifamily residential development granted by the Berkeley Township Planning Board or Zoning Board of Adjustment, including: approvals of use or density variances, site plans, or subdivisions; redevelopment projects subject to a redevelopment plan adopted by the Township Council that governs the development and redevelopment of designated areas in need of rehabilitation or areas in need of redevelopment in the Township; and, substantial revisions to previously approved developments. A substantial revision to a development approval shall, for the purposes of these affordable housing regulations, be any revision that increases the number of residential units by five or more units.
c.
Definition of Multifamily. For the purposes of this section, multifamily residential development shall mean residential development that is located within buildings that contain five or more dwelling units, including, but not limited to, dwelling units that are located one over another, garden apartments, townhouse developments, multistory apartment or condominium buildings, and mixed-use developments containing a combination of non-residential and residential uses.
d.
Set-Aside Requirements for Multifamily Development. All development approvals for multifamily residential development shall provide an affordable set-aside of: 15% of the residential units in the development when rental units are developed; and, 20% of the residential units in the development when for-sale units are developed.
1.
When the application of the set-aside requirement for rental or for-sale units results in a set-aside requirement that is not a whole number, the set-aside requirement shall be rounded up to the next whole number.
2.
At the developer's option, or per the terms of a developer or redeveloper agreement with the Township, the developer may provide an affordable housing set-aside of greater than: 15% for rental units; and, 20% when for-sale units are developed.
3.
A developer of a multi-family residential development may provide a payment-in-lieu-of-construction to fund the construction of affordable housing on another site within the Township in lieu of providing those units on-site up to: a maximum of 2/3 of the required 15% set-aside for rental units; and, 1/2 of the required 20% set-aside when for-sale units are developed.
(a)
The ability to provide a payment-in-lieu-of-construction to fund the construction of a portion of the required set-aside on another site within the Township and the specific ratio of the units provided on-site, or by a payment-in-lieu-of-construction, shall be determined by the application of the Point-Based System for Determining On-site Requirements, as detailed in this section.
(b)
Developers of sites listed in the Housing Plan Element and Fair Share Plan shall provide the entirety of the required set-aside on site and shall not be eligible for a payment-in-lieu-of-construction, except as may be specified in any developer or redeveloper agreement executed prior adoption of this section.
4.
Point-Based System for Determining On-site Affordable Housing Requirements and Eligible Payments-in-Lieu-of-Construction. A developer's ability to provide a payment-in-lieu-of-construction to fund the construction of affordable housing on another site within the Township, rather than provide such units on-site, shall be determined by means of the Point-Based System for Determining On-site Requirements. The following provisions shall regulate the Point-Based System for Determining On-site Requirements:
(a)
Site-Specific Determination of Accumulated Point Values. The Township shall be responsible for determining the specific number of points allocated to a site or development through the application of the Point-Based System for Determining On-site Requirements according to the methodology presented in this section. The Township shall provide the site-specific point total to the Berkeley Township Planning Board or Berkeley Township Zoning Board, as applicable, as part of the relevant board's review of an application for multi-family residential development. The Township shall verify and approve all calculations of total points according to the methodology presented in this section.
(b)
Methodology for Calculating Accumulated Points. Accumulated points shall be calculated in accordance with the following provisions:
(1)
Points shall be accumulated based on: the proximity of a particular development site to bus stops, schools, parks and open space, the Route 9 corridor, and entrances and exits from the Garden State Parkway; and, the location of a particular development site in a town center or corridor node overlay, sewer service area and in an area that is outside of sending areas associated with the Township's transfer of development rights (TDR). In every application of the Point-Based System for Determining On-site Requirements, all of the following point criteria shall be assessed:
[a]
Bus stop within one-quarter mile of development site: 1.0 point. For points to be awarded for more than one bus stop, service on more than one route or in more than one direction must be provided.
[b]
Bus stop within one-half mile of development site: 0.5 point. For points to be awarded for more than one bus stop, service on more than one route or in more than one direction must be provided.
[c]
Public park, open space area, or other recreational facility within one-half mile of development site: 1.0 point.
[d]
Public school within one-half mile of development site: 1.0 point.
[e]
Public school within one-quarter mile of development site: 1.5 points.
[f]
Any portion of development site within one-quarter mile from Route 9: 1.0 point.
[g]
Entrance to or exit from Garden State Parkway within one mile: 0.5 point.
[h]
Entrance to or exit from Garden State Parkway within one-half mile: 1.0 point.
[i]
Site located within a town center: 4.0 points.
[j]
Site located within a corridor node overlay: 2.0 points.
[k]
Notwithstanding the above, please note that sites that are situated in one or more of the following areas shall have no (i.e. zero) accumulated points: outside of a sewer service area; within a TDR sending zone; an area that is located to the west of the Garden State Parkway and subject to the Pinelands Comprehensive Plan; and, single-family residential districts.
(2)
The proximity of a development site to a particular feature shall be performed by means of Geographic Information Systems (GIS) software, Computer-Aided Design (CAD) software, or similar tools.
(3)
The distances from bus stops, schools, parks, open space areas, and recreational facilities that are provided in this section represent distances from the development site, and must be safely walkable or accessible by bicycle or another means of non-motorized transportation. As such, proximity analyses that simply measure the area within a radius of the development site's boundary or center are unacceptable. Proximity shall be measured along suitable transportation routes (e.g., sidewalks, bicycle-suitable roadways, multipurpose trails) that extend in all directions from a site.
(4)
The distances from Route 9, entrances to the Garden State Parkway, and exits from the Garden State Parkway that are provided in this section represent distances from the development site, and must be able to be driven on one or more public improved roadways. As such, proximity analyses that simply measure the area within a radius of the development site's boundary or center are unacceptable. Proximity to Route 9, entrances to the Garden State Parkway, and exits from the Garden State Parkway shall be measured along public improved roadways that extend in all directions from a site.
(5)
The sum of accumulated points shall be rounded to the nearest half-point. The sum of accumulated points is used to determine set-aside requirements in accordance with this section.
(c)
Accumulated Points and Set-Aside Requirements for Multifamily Rental Developments. The sum of accumulated points for a particular development site is rounded to the nearest half-point and used to determine the minimum on-site set-aside requirement and the maximum permissible off-site set-aside, which shall be provided in the form of payments-in-lieu-of-construction in accordance with this section. The total of the on-site set-aside and off-site set-aside provided by payments-in-lieu-of-construction shall equal 15% of the total number of units in the development, rounded up to next whole number. Permissible on-site and off-site set-asides are described below:
(d)
Accumulated Points and Set-Aside Requirements for Multifamily For-Sale Developments. The sum of accumulated points for a particular development site is rounded to the nearest half-point and used to determine the minimum onsite set-aside requirement and the maximum permissible off-site set-aside, which shall be provided in the form of payments-in-lieu-of-construction in accordance with this section. The total of the on-site set-aside and off-site set-aside provided by payments-in-lieu-of-construction shall equal 20% of the total number of units in the development, rounded up to next whole number. Permissible onsite and off-site set-asides are described below:
5.
Zoning Enhancements. In the Town Center 1, Town Center 1 Redevelopment Area, Town Center 2, Corridor Node "A", Corridor Node "B", and Corridor Node "C" zones, developers of multifamily rental and for-sale developments that provide the entire required set-aside onsite shall be provided a density bonus of 15%, calculated on the maximum density permitted by current zone regulations or the maximum density permitted with the effectuated purchase of TDR credits, whichever is greater. All other applicable zoning provisions of Chapter 35 governing these districts shall remain in effect.
6.
Payment-in-Lieu-of-Construction.
(a)
It is the intention of the Township to recover payments-in-lieu-of-construction, made in accordance with this section, in an amount which shall make realistically possible the construction of an affordable housing unit. Such payments shall be calculated by determining the incremental cost of constructing affordable units in the development, if such units were to be part of the multifamily development from which the payment-in-lieu-of-construction is received. For the purposes of this section, the incremental cost shall be the average cost of construction of one-bedroom, two-bedroom and three-bedroom affordable units, less land costs and other fixed costs such as site improvements, infrastructure costs including water and sewer, "soft costs," and the like, which would otherwise be incurred in the development.
(b)
The Township shall be responsible for determining the incremental cost and resulting payment in lieu of construction. To facilitate the calculation of the incremental cost, the developer shall submit a pro forma for the development to the Township for review. The Township may refer the review of the pro forma and calculation of the payment in lieu amount to its professional staff or to an outside consultant.
(c)
The total amount of the payment shall be determined on the number of one-bedroom, two-bedroom and three-bedroom affordable units, which would otherwise be required to be constructed on-site in accordance with applicable law concerning bedroom distribution.
(d)
Collection of payments-in-lieu-of-construction shall be in accordance with the following schedule:
(1)
First Payment: 50% at the time of Building Permit.
(2)
Second Payment: 50% at the time of the first Certificate of Occupancy (CO).
(3)
Reconciliation Payment: Six months after the issuance of the final CO.
(4)
The First Payment and the Second Payment shall be calculated on the estimated incremental cost of an affordable unit, as set forth in a pro forma that shall be submitted by the developer to the CFO and Construction Official with the application for a Building Permit and Certificate of Occupancy, as the case may be.
(5)
The Reconciliation Payment shall be calculated on the basis of the actual incremental cost of the construction of affordable units as set forth in audited construction costs submitted by the developer to the CFO. The developer shall submit the audited construction costs, and any Reconciliation Payment due, to the CFO within six months of the issuance of a final Certificate of Occupancy. The CFO will review the developer's submission and either accept it, direct a further submission, or direct payment of an additional amount within 30 days.
(6)
No Building Permit or Certificate of Occupancy shall be issued unless the payments-in-lieu-of-construction provided in accordance with this ordinance shall have been made.
(7)
Any Reconciliation Payment not made to the CFO within six months of the issuance of a final Certificate of Occupancy shall be subject to a late fee of 15% on the overdue amount, compounded annually.