Berkeley Township City Zoning Code

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.

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.

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.

Lifetime shall construct up to 100 affordable units on the Manitou lots.

General provisions concerning Lifetime's affordable housing responsibilities:

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.

In each affordable development, at least 50% of the restricted units within each bedroom distribution shall be low-income units.

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.

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.

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.

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.

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.

In inclusionary developments, to the extent possible, low- and moderate-income units shall be integrated with the market units.

Affordable units shall utilize the same type of heating source as market units within an inclusionary development.

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.

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:

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

Passive recreation facilities for the general public; and/or

Public uses or buildings.

Flat roof(s) are prohibited.

Windows shall be of a type which are commonly used in residential construction.

All exterior colors shall be earth or pastel tones within the range of tones present on preexisting residential structures in the general area.

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.

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.

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.

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.

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

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.

Soliciting, scheduling, conducting and following up on interviews with interested households;

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;

Providing written notification to each applicant as to the determination of eligibility or non-eligibility;

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.;

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

Employing a random selection process as provided in the Affirmative Marketing Plan of Berkeley Township when referring households for certification to affordable units.

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;

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;

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;

Communicating with lenders regarding foreclosures; and

Ensuring the issuance of continuing certificates of occupancy or certifications pursuant to N.J.A.C. 5:80-26.10.

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

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.

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;

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;

Notifying the municipality of an owner's intent to sell a restricted unit; and

Making determinations on requests by owners of restricted units for hardship waivers.

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;

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;

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;

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;

Establishing a program for diverting unlawful rent payments to the municipality's Affordable Housing Trust Fund; and

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.

The Administrative Agent shall have the authority to take all actions necessary and appropriate to carry out its responsibilities hereunder;

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

The Administrative Agent shall attend continuing education sessions on affordability controls, compliance monitoring, and affirmative marketing at least annually and more often as needed.

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.

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.

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.

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.

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.

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.

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.

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.

The costs of advertising and affirmative marketing of the affordable units shall be the responsibility of the developer, sponsor or owner.

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:

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.

The affordability control period for a restricted ownership unit shall commence on the date the initial certified household takes title to the unit.

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.

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.

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.

A restricted ownership unit shall be required to obtain a Continuing Certificate of Occupancy or a certified statement from the Construction Official stating that the unit meets all Code standards upon the first transfer of title following the removal of the restrictions provided under N.J.A.C. 5:80-26.5(a), as may be amended and supplemented.

Price restrictions for restricted ownership units shall be in accordance with N.J.A.C. 5:80-26.1, as may be amended and supplemented, including:

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

A restricted rental unit shall remain subject to the affordability controls of this article despite the occurrence of any of the following events:

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.

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.

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.

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.

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:

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:

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.

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.

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.

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.

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.

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:

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:

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.

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.

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.

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.

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:

Certificates of occupancy for developments which include affordable housing units shall be subject to the following additional provisions:

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.

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.

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.

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;

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;

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Methodology for Calculating Accumulated Points. Accumulated points shall be calculated in accordance with the following provisions:

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:

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:

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.

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.

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.

Collection of payments-in-lieu-of-construction shall be in accordance with the following schedule: