Flemington City Zoning Code
§ 2632
AFFORDABLE HOUSING PROCEDURAL REQUIREMENTS.
[Ord. No. 2009-4]
A.
Intent.
This section of the Borough Code sets forth regulations regarding the low- and moderate-income housing units in the Borough consistent with the provisions of the Substantive Rules of the New Jersey Council on Affordable Housing, N.J.A.C. 5:93 et seq., the Uniform Housing Affordability Controls, N.J.A.C. 5:80-26.1 et seq. and the Borough's constitutional obligation to provide a fair share of affordable housing for low- and moderate-income households. These regulations are also intended to provide assurances that low- and moderate-income units (the "affordable units") are created with controls on affordability over time and that low- and moderate-income people occupy these units. These regulations shall apply except where inconsistent with applicable law.
[Ord. No. 2017-9 § 2]
B.
Proportion of Low and Moderate Income Units by Sale, Rental and by Number of Bedrooms.
Except for affordable housing developments constructed pursuant to low income tax credit regulations:
1.
At least half of the "for sale" affordable units within each affordable housing development shall be affordable to low income households.
2.
At least half of the "rental" affordable units within each affordable housing development shall be affordable to low income households.
3.
At least half of the affordable units in each bedroom distribution within each affordable housing development shall be affordable to low income households.
C.
Bedroom Distribution of Affordable Units.
1.
Affordable housing developments which are not limited to age-restricted households shall be structured in conjunction with realistic market demands so that:
2.
Affordable housing developments that are limited to age-restricted households shall at a minimum have a total number of bedrooms equal to the number of age-restricted affordable units within the affordable housing development. The standard may be met by creating all one-bedroom units or by creating a two-bedroom unit for each efficiency unit.
D.
Establishing Median Income by Household Size.
1.
Median income by household size shall be established using a regional weighted average of the uncapped Section 8 income limits published by HUD computed as set forth in N.J.A.C. 5:93 or as established by the Court.
2.
Annual increases in income limits of affordable units shall be established as identified in the Affordable Housing Administrative Agent Policies and Procedures Manual for the Administration of Affordable Units.
[Ord. No. 2017-9 § 2]
E.
Establishment of Rents and Prices of Units as Related to Household Size and Number of Units.
1.
In conjunction with realistic market information the following shall be used to determine maximum rents and sales prices of the affordable units:
a.
Efficiency units shall be affordable to one-person households.
b.
A one-bedroom unit shall be affordable to a one- and one-half person household.
c.
A two-bedroom unit shall be affordable to a three-person household.
d.
A three-bedroom unit shall be affordable to a four- and one-half person household.
e.
A four-bedroom unit shall be affordable to a six-person household.
2.
For assisted living facilities the following standards shall be used:
3.
In referring certified households to specific restricted units, to the extent feasible, and without causing an undue delay in occupying the unit, the administrative agent shall strive to:
F.
Establishing Average Rents of Affordable Units.
1.
The maximum rent of affordable units within each affordable housing development shall be affordable to households earning no more than 60 percent of median income. The average rent for low- and moderate-income units shall be affordable to households earning no more than 52 percent of median income. Restricted rental units shall establish at least one rent for each bedroom type for all low and moderate income units provided at least 13 percent of all low- and moderate-income units are affordable to households earning no more that 35 percent of median income.
[Ord. No. 2017-9 § 2]
2.
Low- and moderate-income units shall utilize the same heating source as market units within an inclusionary development.
3.
Gross rents including an allowance for utilities shall be established for the various size affordable units at a rate not to exceed 30 percent of the gross monthly income of the appropriate household size. The allowance for utilities shall be consistent with the utility allowance approved by NJDCA for use in its Section 8 Program.
4.
No affordable rental units included in the COAH requirement shall be subject to a rent control ordinance which may be adopted or in place in the Borough of Flemington during the time period in which affordable housing COAH controls are effective.
5.
Annual increases in rents of affordable units shall be established as identified in the Affordable Housing Administrative Agent Policies and Procedures Manual for the Administration of Affordable Units.
[Ord. No. 2017-9 § 2]
G.
Establishing Average Sales Prices of Affordable Units.
1.
The maximum sales price of restricted ownership units within each affordable development shall be affordable to households earning no more than 70 percent of median income. Each affordable development must achieve an affordability average of 55 percent for restricted ownership units. Moderate income ownership units must be available for at least 3 different prices for each bedroom type and low-income ownership units must be available for at least 2 different prices for each bedroom type.
2.
Low- and moderate-income units shall utilize the same heating source as market units within an inclusionary development.
3.
The initial purchase price for all restricted ownership units shall be calculated so that the monthly carrying costs of the unit, including principal and interest (based on a mortgage loan equal to 95 percent of the purchase price and the Federal Reserve H.15 rate of interest), taxes, homeowner and private mortgage insurance and condominium or homeowner association fees do not exceed 28 percent of the eligible monthly income of an appropriate household size as determined under N.J.A.C. 5:80-26.4; provided, however, that the price shall be subject to the affordability average requirement of N.J.A.C. 5:80-26.3.
4.
Annual increases in resale prices of affordable units shall be established as identified in the Affordable Housing Administrative Agent Policies and Procedures Manual for the Administration of Affordable Units.
[Ord. No. 2017-9 § 2]
H.
Affordable Housing Units: Condominium or Homeowners Association Fees.
1.
If an affordable housing unit is part of a condominium association or homeowner's association, the Master Deed shall reflect that the assessed affordable homeowner's fee be established at 100 percent of the market rate fee. This percentage assessment shall be recorded in the Master Deed.
I.
Reservation of Units.
1.
Very low income housing units shall be reserved for households with a gross income equal to or less than 30 percent of the median income approved by COAH.
2.
Low income housing units shall be reserved for households with a gross household income equal to or less than 50 percent of the median income approved by COAH.
3.
Moderate income housing units shall be reserved for households with a gross household income in excess of 50 percent but less than 80 percent of the median income approved by COAH.
J.
Reoccupancy Certificates.
1.
Upon resale of an affordable unit, a Certificate of Reoccupancy shall be required in accordance with N.J.A.C. 5:80-26.10.
K.
Phasing Of Construction.
1.
Final site plan or subdivision approval shall be contingent upon the affordable housing development meeting the following phasing schedule for low- and moderate-income units whether developed in one stage or in 2 or more stages.
Minimum Percentage of Low & Moderate Income Units Completed | Percentage of Market Housing Units Completed |
|---|---|
0 | 25 |
10 | 25 + 1 unit |
50 | 50 |
75 | 75 |
100 | 90 |
L.
Control Period for Affordable Housing.
1.
Any conveyance of a newly constructed low or moderate income sales unit shall contain the restrictive covenants and liens that are set forth in N.J.A.C. 5:80-26 et seq.
M.
Time Period For Controls.
1.
Newly constructed low and moderate income "rental" units shall remain affordable to low- and moderate-income households for a period of at least 30 years.
2.
Newly constructed low and moderate income "for sale" units shall remain affordable to low- and moderate-income households for a period of at least 30 years.
3.
Rehabilitated owner-occupied single family housing units that are improved to code standard shall be subject to affordability controls for 10 years.
4.
Rehabilitated renter-occupied housing units that are improved to code standard shall be subject to affordability controls for at least 10 years.
5.
Housing units created through conversion of a nonresidential structure shall be considered a new housing unit and shall be subject to affordability controls for new housing units as designated in items 1 and 2 above.
6.
Affordability controls for units in alternative living arrangements shall be for a period of 30 years.
7.
Market to affordable units shall remain affordable to low and moderate income households for a period of at least 30 years.
8.
Extension of control units shall remain affordable to low and moderate income households for a period of at least 30 years.
O.
Adaptable and Accessible Units.
1.
The first floor of all townhouse dwelling units and of all other multistory dwelling units which are affordable to low or moderate households shall be subject to the technical design standards of the Barrier Free Subcode (N.J.A.C. 5:23-7).
2.
Each affordable townhouse unit or other affordable multistory dwelling unit that 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;
(1)
An adaptable kitchen on the first floor;
b.
An accessible route of travel;
(1)
An interior accessible route of travel shall not be required between stories.
c.
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
d.
Accessible Entranceways.
(1)
The developer shall provide 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) for each affordable townhouse unit or other affordable multistory dwelling unit and is attached to at least one other dwelling unit; or
(2)
The developer shall provide funds sufficient to make 10 percent of the adaptable entrances in the development accessible 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).
e.
The developer of the project shall submit a conversion plan indicating the steps necessary to convert the unit from being adaptable to accessible. Said plan shall be submitted at the time of issuance of a building permit.
f.
Where the developer will provide funds sufficient to make 10 percent of the adaptable entrances in the development accessible, the developer of the project shall submit the following to the Borough, at the time of issuance of the building permit, in order to determine the required funds:
g.
In the case of an affordable unit or units which are 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 by the Borough.
P.
Administration of Affordable Housing Program.
1.
Flemington Borough is ultimately responsible for administering the affordable housing program, including affordability controls and the Affirmative Marketing Plan in accordance with the regulations of the Council on Affordable Housing pursuant to N.J.A.C. 5:93 et seq. and the New Jersey Uniform Housing Affordability Controls pursuant to N.J.A.C. 5:80-26 et seq.
2.
Establishment of Municipal Housing Liaison Position and compensation; powers and duties.
a.
Establishment of position of Municipal Housing Liaison. There is hereby established the position of Municipal Housing Liaison for the Borough of Flemington.
b.
Subject to the approval of the Council on Affordable Housing (COAH) or the Court, the Municipal Housing Liaison shall be appointed by the Governing Body and may be a full or part time municipal employee.
c.
The Municipal Housing Liaison shall be responsible for oversite and administration of the affordable housing program for the Borough of Flemington, including the following responsibilities which may not be contracted out, exclusive of item (6) which may be contracted out:
(1)
Serving as the Borough of Flemington'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 the Borough of Flemington's Fair Share Plan;
(3)
Compiling, verifying, and submitting annual reports as required by COAH or the Court;
(4)
Coordinating meetings with affordable housing providers and Administrative Agents, as applicable;
(5)
Attending continuing education opportunities on affordability controls, compliance monitoring, and affirmative marketing as offered or approved by COAH or the Court;
d.
Flemington Borough will contract with or authorize a consultant, authority, government or any agency charged by the Governing Body, which entity shall have the responsibility of administering the affordable housing program of the Borough of Flemington, except for those responsibilities that may not be contracted out pursuant to Subsection c above. If the Borough of Flemington contracts with one or more administrative agents to administer some or all of the affordable housing program, including the affordability controls and/or the Affirmative Marketing Plan the Municipal Housing Liaison shall supervise the contracting Administrative Agent.
e.
Compensation. Compensation shall be fixed by the Governing Body at the time of the appointment of the Municipal Housing Liaison.
3.
Administrative Agent. The Borough of Flemington intends to contract with an administrative agent to administer the sale and rental of all new affordable housing. The Administrative Agent will oversee and administer income qualification of low- and moderate-income households; place income eligible households in low- and moderate-income units upon initial occupancy; place income eligible households in low- and moderate-income units as they become available during the period of affordability controls and enforce the terms of the required deed restrictions and mortgage loans. The administrative agent will specifically administer and implement:
a.
An administrative plan and program, and related monitoring and reporting requirements as outlined in N.J.A.C. 5:80-26.15 et seq. and N.J.A.C. 5:93.
b.
A plan for certifying and verifying the income of low- and moderate-income households as per N.J.A.C. 5:80-26.16
c.
Procedures to assure that low- and moderate-income units are initially sold or rented to eligible households and are thereafter similarly re-sold and re-rented during the period while there are affordability controls as per N.J.A.C. 5:80-26 et seq.
d.
The requirement that all newly constructed low- and moderate-income sales or rental units contain deed restrictions with appropriate mortgage liens as set forth in Appendices in N.J.A.C. 5:80-26 et seq.
e.
The several sales/purchase options authorized under N.J.A.C. 5:80-26 et seq. except that the Borough retains the right to determine by resolution whether or not to prohibit, as authorized under N.J.A.C. 5:80-26 et seq., the exercise of the repayment option.
f.
The regulations determining 1) whether installed capital improvements will authorize an increase in the maximum sales price; and 2) which items of property may be included in the sales price as per N.J.A.C. 5:80-26.9.
4.
The developers/owners of any inclusionary site shall be responsible for the administrative fee, affirmative marketing and advertising and such shall be a condition of Planning or Zoning Board approval.
5.
Flemington Borough reserves the right to replace the administrative agent with another municipal authority or other agency authorized by COAH to carry out the administrative processes outlined above.
[Ord. No. 2017-9 § 2]
Q.
Enforcement of Affordable Housing Regulations.
1.
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, municipal fines, a requirement for household recertification, acceleration of all sums due under a mortgage, recoupment of any funds from a sale in the violation of the regulations, injunctive relief to prevent further violation of the regulations, entry on the premises, and specific performance.
2.
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 against the Owner, Developer or Tenant for any violation that remains uncured for a period of 60 days after service of the written notice:
a.
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 found 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:
(1)
Pursuant to N.J.S.A. 40:49-5, a fine of not more than $2,000 or imprisonment for a period not to exceed 90 days, or both. Each and every day that the violation continues or exists shall be considered a separate and specific violation of these provisions and not as a continuing offense;
(2)
In the case of an Owner who has rented his or her low- or moderate-income unit in violation of the regulations governing affordable housing units, payment into the Flemington Borough Affordable Housing Trust Fund of the gross amount of rent illegally collected;
(3)
In the case of an Owner who has rented his or her 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.
b.
The municipality may file a court action in the Superior Court seeking a judgment, which would result in the termination of the Owner's equity or other interest in the unit, in the nature of a mortgage foreclosure. Any judgment shall be enforceable as if the same were a judgment of default of the First Purchase Money Mortgage and shall constitute a lien against the low- and moderate-income unit.
3.
Such judgment shall be enforceable, at the option of the municipality, by means of an execution sale by the Sheriff, at which time the low- and moderate-income unit of the violating Owner shall be sold at a sale price which is not less than the amount necessary to fully satisfy and pay off any First Purchase Money Mortgage and prior liens and the costs of the enforcement proceedings incurred by the municipality, including attorney's fees. The violating Owner shall have the right to possession terminated as well as the title conveyed pursuant to the Sheriff's sale.
4.
The proceeds of the Sheriff's sale shall first be applied to satisfy the First Purchase Money Mortgage lien and any prior liens upon the low- and moderate-income unit. The excess, if any, shall be applied to reimburse the municipality for any and all costs and expenses incurred in connection with either the court action resulting in the judgment of violation or the Sheriff's sale. In the event that the proceeds from the Sheriff's sale are insufficient to reimburse the municipality in full as aforesaid, the violating Owner shall be personally responsible for and to the 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.
5.
Foreclosure by the municipality due to violation of the regulations governing affordable housing units shall not extinguish the restrictions of the regulations governing affordable housing units as the same apply to the low- and moderate-income unit. Title shall be conveyed to the purchaser at the Sheriff's sale, subject to the restrictions and provisions of the regulations governing the affordable housing unit. The Owner determined to be in violation of the provisions of this plan and from whom title and possession were taken by means of the Sheriff's sale shall not be entitled to any right of redemption.
6.
If there are no bidders at the Sheriff's sale, or if insufficient amounts are bid to satisfy the First Purchase Money Mortgage and any prior liens, the municipality may acquire title to the low- and moderate-income unit by satisfying the First Purchase Money Mortgage and any prior liens and crediting the violating owner with an amount equal to the difference between the First Purchase Money Mortgage and any prior liens and costs of the enforcement proceedings, including legal fees and the maximum resale price for which the low- and moderate-income unit could have been sold under the terms of the regulations governing affordable housing units. This excess shall be treated in the same manner as the excess which would have been realized from an actual sale as previously described.
7.
Failure of the low- and moderate-income unit to be either sold at the Sheriff's sale or acquired by the municipality shall obligate the Owner to accept an offer to purchase from any qualified purchaser which may be referred to the Owner by the municipality, with such offer to purchase being equal to the maximum resale price of the low- and moderate-income unit as permitted by the regulations governing affordable housing units.
8.
The Owner shall remain fully obligated, responsible and liable for complying with the terms and restrictions of governing affordable housing units until such time as title is conveyed from the Owner.
[Ord. No. 2017-9 § 2]