Livingston City Zoning Code
ARTICLE XIV
Affordable Housing Regulations
[Added by Ord. No. 16-1997; amended 5-16-2011 by Ord. No. 21-2011; 9-19-2022 by Ord. No. 27-2022]
§ 170-125 Affordable housing obligation.
The Township of Livingston Planning Board has adopted a Housing Element and Fair Share Plan ("HEFSP") pursuant to procedural requirements in the Municipal Land Use Law.[1] The HEFSP has been endorsed by resolution adopted by the Township Council. The HEFSP describes the ways the Township of Livingston intends to address its fair share obligation for lower-income housing consistent with prior regulations of the Council on Affordable Housing (COAH) and applicable legal principles and as documented in the HEFSP.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
This Article XIV implements and incorporates the HEFSP and addresses the requirements of former N.J.A.C. 5:97, as may be superseded, amended and supplemented.
The Township of Livingston will continue to file monitoring reports with COAH and/or any successor state agency consistent with former N.J.A.C. 5:96, tracking the status of implementation of the HEFSP. Any evaluation report of the HEFSP and monitoring prepared by COAH and/or any successor state agency consistent with former N.J.A.C. 5:96 shall be available to the public at the Township of Livingston Municipal Building, Township Clerk's Office, 357 S. Livingston Avenue, Livingston, New Jersey.
§ 170-126 Definitions.
The following terms, when used in this Article XIV, shall have the meanings given in this section:
The Fair Housing Act of 1985, P.L. 1985, c. 222, as amended (N.J.S.A. 52:27D-301 et seq.).
Constructed in compliance with the technical design standards of the Barrier Free Subcode, N.J.A.C. 5:23-7.
The entity responsible for administration of affordable units in accordance with this Article XIV, former N.J.A.C. 5:96, former N.J.A.C. 5:97 and N.J.A.C. 5:80-26.1 et seq.
A regional marketing strategy designed to attract buyers and/or renters of affordable units pursuant to N.J.A.C. 5:80-26.15.
The average percentage of median income at which affordable units in an affordable housing development are affordable to lower-income households.
A sales price or rent within the Means of a lower-income household as defined in former N.J.A.C. 5:97-9, in the case of an ownership unit, that the sales price for the unit conforms to the standards set forth in N.J.A.C. 5:80-26.6, as may be amended and supplemented, and, in the case of a rental unit, that the rent for the unit conforms to the standards set forth in N.J.A.C. 5:80-26.12, as may be amended and supplemented.
A housing development, all or a portion of which consists of affordable units.
A development included in the HEFSP, and includes, but is not limited to, an inclusionary development, a municipal construction project or a 100% affordable development.
Any mechanism in the HEFSP prepared or implemented to address Livingston Township's fair share obligation.
A housing unit proposed or created pursuant to the Act, credited pursuant to former N.J.A.C. 5:97-4, approved by court order, and/or funded through an affordable housing trust fund, whether a rental unit or ownership unit, that is subject to the affordability controls of N.J.A.C. 5:80-26.1, as may be amended and supplemented.
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 residents of the development where the unit is situated are either 62 years or order or are a couple, one of whom is of such age; or 2) at least 80% of the units are occupied by one or more persons 55 years or older; or 3) the development has been designated by the Secretary of the U.S. Department of Housing and Urban Development as "housing for older persons" as defined in Section 807(b)(2) of the Fair Housing Act, 42 U.S.C. § 3607.
The New Jersey Housing and Mortgage Finance Agency established by P.L. 1983, c. 530 (N.J.S.A. 55:14K-1 et seq.).
A facility licensed by the New Jersey Department of Health and Senior Services to provide apartment-style housing and congregate dining and to assure that assisted living services are available when needed for four or more adult persons unrelated to the proprietor and that offers units containing, at a minimum, one unfurnished room, a private bathroom, a kitchenette and a lockable door on the unit entrance.
A household that has been certified by the administrative agent as a lower-income household.
The Council on Affordable Housing, which was established by the New Jersey Fair Housing Act (N.J.S.A. 52:27D-301 et seq.).
The State of New Jersey Department of Community Affairs.
A housing unit with health and safety code violations that require the repair or replacement of a major system. A major system includes weatherization, roofing, plumbing (including wells), heating, electricity, sanitary plumbing (including septic systems), lead paint abatement and/or load-bearing structural systems.
Any person, partnership, association, company or corporation that is the legal or beneficial owner or owners of a lot or any land proposed to be included in a proposed development, including the holder of an option to contract or purchase, or other person having an enforceable proprietary interest in such land.
The division of a parcel of land into two or more parcels, the construction, reconstruction, conversion, structural alteration, relocation, or enlargement of any use or change in the use of any building or other structure, or of any mining, excavation or landfill, and any use or change in the use of any building or other structure, or land or extension of use of land, for which permission may be required pursuant to N.J.S.A. 40:55D-1 et seq.
A development containing both affordable units and market-rate units. This term includes, but is not necessarily limited to, new construction, the conversion of a nonresidential structure to residential, and the creation of new affordable units through the reconstruction of a vacant residential structure.
A household with a total gross annual household income equal to 50% or less of the median household income.
An affordable unit that is affordable to a low-income household.
Collectively, very-low-income, low-income and moderate-income.
The primary structural, mechanical, plumbing, electrical, fire protection, or occupant service components of a building, including, but not limited to, weatherization, roofing, plumbing (including wells), heating, electricity, sanitary plumbing (including septic systems), lead paint abatement or load-bearing structural systems.
Housing not restricted to lower-income households that may sell or rent at any price.
The median income by household size for the applicable housing region, as adopted annually by COAH or other governmental agency or nonprofit entity.
A household with a total gross annual household income in excess of 50% but less than 80% of the median household income.
An affordable unit that is affordable to a moderate-income household.
Any sale or transfer of ownership other than: the transfer of ownership between husband and wife; the transfer of ownership between former spouses ordered as a result of a judicial decree of divorce or judicial separation, but not including sales to third parties; the transfer of ownership between family members as a result of inheritance; the transfer of ownership through an executor's deed to a Class A beneficiary; and the transfer of ownership by court order.
A process by which currently income-eligible households are selected for placement in affordable housing units such that no preference is given to one applicant over another except for purposes of matching household income and size with an appropriately priced and sized affordable unit (e.g., by lottery).
The maximum housing value in each housing region affordable to a four-person household with an income at 80% of the regional median as defined by COAH's adopted regional income limits published annually by DCA.
The repair, renovation, alteration or reconstruction of any building or structure pursuant to the Rehabilitation Subcode, N.J.A.C. 5:23-6.
The gross monthly cost of a rental unit to the tenant, including the rent paid to the landlord, as well as an allowance for tenant- paid utilities computed in accordance with allowances published by DCA for its Section 8 program. In assisted living residences, rent does not include charges for food and services.
The Uniform Housing Affordability Controls set forth in N.J.A.C. 5:80-26.1 et seq.
A household with a total gross annual household income equal to 30% or less of the median household income.
Means an affordable unit that is affordable to a very-low-income household.
Building insulation (for attic, exterior walls and crawl space), siding to improve energy efficiency, replacement storm windows, replacement storm doors, replacement windows and replacement doors, and is considered a major system for rehabilitation.
§ 170-127 Affordable housing programs.
The Township of Livingston has determined that it will address its ongoing affordable housing obligation by use of the following mechanisms:
Rental bonus credits.
Supportive and special needs housing units.
Assisted living facilities.
Credits for completed housing rehabilitation.
Credits for completed affordable housing units for senior citizens.
Credits for previously performed regional contribution agreements.
Any other approved mechanism as set forth in the HEFSP.
§ 170-127.1 Rehabilitation program.
The Township of Livingston's rehabilitation program is designed to renovate deficient housing units occupied by lower-income households such that, after rehabilitation, these units will comply with the New Jersey State Housing Code pursuant to N.J.A.C. 5:28.
Both owner-occupied and renter-occupied units are eligible for rehabilitation funds.
All rehabilitated units shall remain affordable to low- and moderate-income households for a period of 10 years (the control period). For owner-occupied units, the control period will be enforced with a lien, and for renter-occupied units, the control period will be enforced with a deed restriction.
The Township of Livingston has dedicated a minimum of $10,000 for each unit to be rehabilitated through this program, reflecting the minimum hard cost of rehabilitation for each unit.
The Township of Livingston has designated one or more administrative agents to administer the rehabilitation program consistent with former N.J.A.C. 5:96 and former N.J.A.C. 5:97. The administrative agent shall provide a rehabilitation manual for the owner occupancy rehabilitation program and a rehabilitation manual for the rental occupancy rehabilitation program. Both rehabilitation manuals shall be available for public inspection in the office of the Township Clerk and in the office(s) of the administrative agent(s).
Units in a rehabilitation program shall be exempt from former N.J.A.C. 5:97-9 and the Uniform Housing Affordability Controls (UHAC), but shall be administered in accordance with the following:
If a unit is vacant upon initial rental subsequent to rehabilitation, or if a renter-occupied unit is rerented prior to the end of controls on affordability, the deed restriction shall require the unit to be rented to a low- or moderate-income household at an affordable rent and affirmatively marketed consistent with former N.J.A.C. 5:97-9 and UHAC.
If a unit is renter-occupied, upon completion of the rehabilitation, the maximum rate of rent shall be the lesser of the current rent or the maximum permitted rent consistent with former N.J.A.C. 5:97-9 and UHAC.
Rents in rehabilitated units may increase annually consistent with the standards in former N.J.A.C. 5:97-9.
Applicant and/or tenant households shall be certified as income-eligible consistent with former N.J.A.C. 5:97-9 and UHAC, except that households in owner-occupied units shall be exempt from the regional asset limit.
§ 170-127.2 Inclusionary zoning.
The Township of Livingston previously adopted ordinances that created the following inclusionary zoning districts:
Livingston Township has recently created additional inclusionary development zoning districts to implement the 2021 HEFSP as follows:
R-5L Residence Overlay District (§ 170-104.7): 3.57-acre property permitting inclusionary development at 20.2 units per acre to provide up to 72 total units, including a 20% set-aside of 14 affordable units (Block 6101, Lots 25 and 26).
R-5M Residence District (§ 107-104.8): 6.67-acre property permitting up to 71 total residential units, subject to a 20% set-aside of 14 affordable housing units ("AH Zone"; Block 107, Lot 8.01).
R-5N Residence District (§ 170-104.9): zoning permitting residential development at a net density of 14 dwelling units per acre, subject to a 20% set-aside for affordable housing, providing up to 45 total dwelling units including nine affordable units (Block 6001, Lot 2).
R-5O Residence District (§ 170-104.11): 1.79-acre property permitting townhouse and apartment development at a gross density of 18 units per acre, subject to a 20% set-aside of six affordable housing units (Lots 62 and 63).
R-5P Residence District (§ 107-104.10): 2.73-acre property permitting up to two affordable housing units (Block 1304, Lot 23).
R-5Q Residence District (§ 170-104.13): zoning permitting development at a net density of 15 dwelling units per acre, subject to a 20% set-aside for affordable housing, providing up to 100 total dwelling units, including 20 affordable units (Block 6100, Lot 5).
R-5R Residence District (§ 170-104.14): 6.5-acre property permitting up to 39 total residential units, subject to a 20% set-aside of eight affordable housing units (Block 6101 Lot 2).
630 NJSH Route 10 Overlay District Redevelopment Plan (approved by Ord. No. 19-2021): Authorize mixed-use development of sixteen-acre property to permit up to a total of 300 residential units to be developed on not less than 8.7 acres of the site, subject to a 20% set-aside for affordable housing, with 13% of the affordable units being affordable for very-low-income households. Approximately 7.3 acres will be retained for institutional/educational use. (Block 100, Lot 3).
MU-2 Mixed-Use District (§ 107-104.12): zoning permitting mixed-use development of up to 12 dwelling units per acre, subject to a 20% set-aside to provide up to 10 affordable housing units (Block 101, Lots 3 and 4).
RIAO District (§ 170-106.1): zoning of approximately sixteen-acre site (of which 1.75 acres may be retained for church use) at a gross density of 16 units per acre, subject to a 20% affordable housing set-aside of 45 units. Development would be adult senior housing requiring at least 80% of the units to be occupied by a head of household 55 years of age or older (Block 2100, Lots 22 to 25 and 35.01 to 35.03).
In addition, all new development on any other contiguous property in Livingston Township involving multifamily residential development of five units or more shall be subject to an affordable housing component as follows:
An affordable housing set-aside of 15% for rental units.
An affordable housing set-aside of 20% for sale units.
Any fractional affordable housing requirement may be addressed by a contribution to the Township Affordable Housing Trust Fund in an amount calculated based on $100,000 multiplied by the fractional affordable housing requirement as calculated to two decimal points. Fifty percent of the required payment shall be provided upon issuance of the first building permit and 50% shall be provided upon issuance of the first certificate of occupancy.
Phasing. In inclusionary developments the following phasing schedule shall be followed:
Percentage of Market-Rate Units Completed | Minimum Percentage of Affordable Units Completed |
|---|---|
25% | 0% |
25% + 1 unit | 10% |
50% | 50% |
75% | 75% |
90% | 100% |
Design. In inclusionary developments, to the maximum extent possible, affordable units shall be integrated with the market-rate units.
Utilities. Affordable units shall utilize the same type of heating source as market-rate units within any inclusionary development.
Amenities. Affordable units shall have access to the same amenities and facilities as market-rate units within any inclusionary development.
§ 170-127.3 New construction.
The following guidelines apply to all newly constructed developments that contain lower-income housing units, including any currently unanticipated future developments that will provide lower-income housing units. These requirements shall be equally applicable to rental and for-sale affordable units.
Low/moderate unit split and bedroom distribution of affordable housing units:
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. The allocation of low-income units shall include very-low-income units in an amount equal to 13% of the total number of all lower-income units.
In each development, at least 50% of the affordable units within each bedroom distribution shall be low-income units.
Unit size distribution in non-age-restricted developments.
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 shall be no greater than 20% of the total lower-income units;
At least 30% of all lower-income units shall be two-bedroom units;
At least 20% of all lower-income units shall be three-bedroom units; and
The remaining lower-income units may be allocated among two- and three-bedroom units at the discretion of the developer.
This distribution of unit sizes based on the number of bedrooms shall be equally applicable to very-low-income units.
Affordable developments that are age-restricted shall be structured such that the number of bedrooms shall equal the number of age- restricted lower-income units within the inclusionary development. This standard may be met by having all one-bedroom units or by having a two-bedroom unit for each efficiency unit.
Accessibility requirements.
The first floor of all affordable townhouse dwelling units and all affordable 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 former N.J.A.C. 5:97-3.14.
All affordable townhouse dwelling units and all affordable units in other multistory buildings in which an affordable dwelling unit is attached to at least one other dwelling unit shall have the following features:
An adaptable toilet and bathing facility on the first floor;
An adaptable kitchen on the first floor;
An interior accessible route of travel on the first floor;
An interior accessible route of travel shall not be required between stories within an individual unit;
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
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 and N.J.A.C. 5:97-3.14, or evidence that the Township of Livingston has collected funds from the developer sufficient to make 10% of the adaptable entrances in the development accessible.
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.
Except for affordable townhouse dwelling units, every building of more than two stories shall have a passenger elevator.
Maximum rents and sales prices.
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 other governmental agency or nonprofit entity.
The maximum rent for affordable rental units within each affordable development shall be affordable to households earning no more than 60% of median income, and the average rent for affordable low- and moderate-income units shall be affordable to households earning no more than 52% of median income.
The developers and/or municipal sponsors of affordable rental units shall establish at least one rent for each bedroom type for both low-income and moderate-income units.
At least 13% of all affordable units shall be affordable to households earning no more than 30% of median income.
The maximum sales price of affordable 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 affordable ownership units; in achieving this affordability average, moderate-income ownership units must be available for at least three different prices for each bedroom type, and low-income ownership units must be available for at least two different prices for each bedroom type.
In determining the initial sales prices and rents for compliance with the affordability average requirements for affordable units other than assisted living facilities, the following standards shall be used:
A studio shall be affordable to a one-person household;
A one-bedroom unit shall be affordable to a one-and-one-half-person household;
A two-bedroom unit shall be affordable to a three-person household;
A three-bedroom unit shall be affordable to a four-and-one-half-person household; and
A four-bedroom unit shall be affordable to a six-person household.
In determining the initial rents for compliance with the affordability average requirements for affordable units in assisted living facilities, the following standards shall be used:
The initial purchase price for all affordable 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 homeowners' association fees, does not exceed 28% of the eligible monthly income of the appropriate size household as determined under N.J.A.C. 5:80-26.4, as may be amended and supplemented; provided, however, that the price shall be subject to the affordability average requirement of N.J.A.C. 5:80-26.3, as may be amended and supplemented.
The initial rent for an affordable rental unit shall be calculated so as not to exceed 30% of the eligible monthly income of the appropriate household size 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 lower-income units may increase annually based on the percentage increase in the regional median income limit for the 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 lower-income units may be increased annually based on the 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.
Utilities. Tenant-paid utilities that are included in the utility allowance shall be so stated in the lease and shall be consistent with the utility allowance approved by DCA for its Section 8 program.
§ 170-127.4 Affirmative marketing requirements.
The Township of Livingston has adopted an affirmative marketing plan 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 which are being marketed by a developer, sponsor or owner of affordable housing. The affirmative marketing plan is also 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 all marketing activities toward COAH Housing Region 2 and covers the period of deed restriction.
The affirmative marketing plan shall provide a regional preference for all households that live and/or work in COAH Housing Region 2 comprised of Essex, Morris, Union and Warren Counties.
The administrative agent designated by the Township of Livingston shall assure the affirmative marketing of all affordable units is consistent with the affirmative marketing plan.
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 process for available affordable units shall begin at least four months prior to the expected date of occupancy.
The costs of advertising and affirmative marketing of the affordable units, income eligibility determinations and related administrative actions related to the occupancy of affordable units shall be the responsibility of the developer, sponsor or owner, unless otherwise determined or agreed to by the Township of Livingston.
All affordable housing units that must be affirmatively marketed shall be listed on the Housing Resource Center website.
§ 170-127.5 Occupancy standards.
In referring certified households to specific affordable units, to the extent feasible, and without causing an undue delay in occupying the unit, the administrative agent shall strive to:
Additional provisions related to occupancy standards (if any) shall be provided in the Township Operating Manual.
§ 170-127.6 Control periods for affordable ownership units; enforcement mechanisms.
Control periods for affordable ownership units shall be in accordance with N.J.A.C. 5:80-26.5, as may be amended and supplemented, and each affordable ownership unit shall remain subject to the requirements of this Article XIV until the Township of Livingston elects to release the unit from such requirements. Prior to such an election, an affordable ownership unit must remain subject to the requirements of N.J.A.C. 5:80-26.1, as may be amended and supplemented, for at least 30 years.
The affordability control period for an affordable 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 an affordable ownership unit and upon each successive sale during the period of affordable ownership, the administrative agent shall determine the affordable price for the unit and shall also determine the nonrestricted, fair market value of the unit based on either an appraisal or the unit's equalized assessed value.
At the time of the first sale of the unit, the purchaser shall execute and deliver to the administrative agent a recapture note obligating the purchaser (as well as the purchaser's heirs, successors and assigns) to repay, upon the first nonexempt sale after the unit's release from the requirements of this Article XIV, an amount equal to the difference between the unit's nonaffordable fair market value and its affordable price, and the recapture note shall be secured by a recapture lien evidenced by a duly recorded mortgage on the unit.
The affordability controls set forth in this Article XIV shall remain in effect despite the entry and enforcement of any judgment of foreclosure with respect to affordable ownership units.
An affordable 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 that follows expiration of the applicable minimum control period provided under N.J.A.C. 5:80-26.5(a), as may be amended and supplemented.
§ 170-127.7 Price restrictions for affordable ownership units.
Price restrictions for affordable ownership units shall be in accordance with N.J.A.C. 5:80-26.1, as may be amended and supplemented, including:
The initial purchase price for an affordable ownership unit shall be approved by the administrative agent.
The administrative agent shall approve all resale prices, in writing and in advance of the resale, to assure compliance with the foregoing standards.
The method used to determine condominium association fee amounts and special assessments shall be indistinguishable between the affordable unit owners and the market-rate unit owners.
The owners of affordable ownership units may apply to the administrative agent to increase the maximum sales price for the unit on the basis of capital improvements. Eligible capital improvements shall be those that render the unit suitable for a larger household or the addition of a bathroom.
§ 170-127.8 Buyer income eligibility.
Buyer income eligibility for affordable 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.
The administrative agent shall certify a household as eligible for an affordable 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 homeowners' association fees, as applicable) does not exceed 33% of the household's certified monthly income.
§ 170-127.9 Limitations on indebtedness secured by ownership unit; subordination.
Prior to incurring any indebtedness to be secured by an affordable ownership unit, the administrative agent shall determine, in writing, that the proposed indebtedness complies with the provisions of this section.
With the exception of original purchase money mortgages, during a control period, neither an owner nor a lender shall at any time cause or permit the total indebtedness secured by an affordable ownership unit to exceed 95% of the maximum allowable resale price of that unit, as such price is determined by the administrative agent in accordance with N.J.A.C. 5:80-26.6(b).
§ 170-127.10 Control periods for affordable rental units.
Control periods for affordable rental units shall be in accordance with N.J.A.C. 5:80-26.11, as may be amended and supplemented, and each affordable rental unit shall remain subject to the requirements of this Article XIV until the Township of Livingston elects to release the unit from such requirements pursuant to action taken in compliance with N.J.A.C. 5:80-26.1, as may be amended and supplemented. Prior to such an election, an affordable rental unit must remain subject to the requirements of N.J.A.C. 5:80-26.1, as may be amended and supplemented, for at least 30 years.
Deeds of all real property that include affordable rental units shall contain deed restriction language. The deed restriction shall have priority over all mortgages on the property, and the deed restriction shall be filed by the developer or seller with the records office of the County of Essex. A copy of the filed document shall be provided to the administrative agent within 30 days of receipt of a certificate of occupancy.
An affordable rental unit shall remain subject to the affordability controls of this Article XIV despite the occurrence of any of the following events:
§ 170-127.11 Price restrictions for rental units; leases.
A written lease shall be required for all affordable rental units, except for units in an assisted living residence, 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 affordable 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 affordable 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 XIV.
§ 170-127.12 Tenant income eligibility.
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:
Very-low-income rental units shall be reserved for households with a gross household income less than or equal to 30% of median income.
Low-income rental units shall be reserved for households with a gross household income less than or equal to 50% of median income.
Moderate-income rental units shall be reserved for households with a gross household income less than 80% of median income.
The administrative agent shall certify a household as eligible for an affordable 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 affordable 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 household currently pays more than 35% (40% for households eligible for age-affordable units) of its gross household income for rent, and the proposed rent will reduce its housing costs;
The household has consistently paid more than 35% (40% for households eligible for age-affordable units) of eligible monthly income for rent in the past and has proven its ability to pay;
The household is currently in substandard or overcrowded living conditions;
The household documents the existence of assets with which the household proposes to supplement the rent payments; or
The household documents proposed 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.
§ 170-127.13 Municipal Housing Liaison.
The position of Municipal Housing Liaison (MHL) for the Township of Livingston is hereby reconfirmed by this Article XIV. The Township Manager shall make the actual appointment of the MHL.
The MHL must be either a full-time or part-time employee of the Township of Livingston, with additional compensation to be provided from the Township Affordable Housing Trust Fund.
Appointment of the MHL will be reported to COAH or any successor state agency for approval.
The MHL must meet all requirements of COAH or any successor state agency for qualifications, including initial and periodic training.
The MHL shall be responsible for oversight and administration of the affordable housing program for the Township of Livingston, including the following responsibilities which may not be contracted out to the administrative agent:
Serving as the Township's primary point of contact for all inquiries from the state, affordable housing providers, administrative agents and interested households;
Implementation of the affirmative marketing plan and affordability controls;
When applicable, supervising any contracting administrative agent;
Monitoring the status of all affordable units in the Township HEFSP;
Compiling, verifying and submitting annual reports as required by COAH or any successor state agency;
Coordinating meetings with affordable housing providers and administrative agents, as applicable; and
Attending continuing education opportunities on affordability controls, compliance monitoring and affirmative marketing as offered or approved by COAH or any successor state agency.
§ 170-127.14 Administrative agent.
The Township of Livingston shall designate by resolution of the Township Council, subject to the approval of COAH or any successor state agency, one or more administrative agents to administer newly constructed affordable units in accordance with former N.J.A.C. 5:96, former N.J.A.C. 5:97 and UHAC.
The administrative agent shall perform the duties and responsibilities of an administrative agent as are set forth in UHAC and described in full detail in the Operating Manual, including those set forth in N.J.A.C. 5:80-26.14, 26.16 and 26.18 thereof, which includes:
Attending continuing education opportunities on affordability controls, compliance monitoring, and affirmative marketing as offered or approved by COAH or any successor state agency;
Affirmative marketing;
Household certification;
Affordability controls;
Records retention;
Resale and rerental;
Processing requests from unit owners; and
Enforcement, though the ultimate responsibility for retaining controls on the units rests with the Township.
The administrative agent shall have authority to take all actions necessary and appropriate to carry out its responsibilities hereunder.
§ 170-127.15 Enforcement of affordable housing regulations; violations and penalties.
Upon the occurrence of a breach of any of the regulations governing the affordable unit by an owner, developer or tenant, the Township 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 violation of the regulations, injunctive relief to prevent further violation of the regulations, entry on the premises, and specific performance.
After providing written notice of a violation to an owner, developer or tenant of a lower-income unit and advising the owner, developer or tenant of the penalties for such violations, the Township 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:
The Township 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:
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, rather than a continuing offense;
In the case of an owner who has rented his or her lower-income unit in violation of the regulations governing affordable housing units, payment into the Township of Livingston Affordable Housing Trust Fund of the gross amount of rent illegally collected;
In the case of an owner who has rented his or her lower-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 Township may file a court action in the Superior Court seeking a judgment which would result in 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 lower-income unit.
Such judgment shall be enforceable, at the option of the Township, by means of an execution sale by the Sheriff, at which time the lower-income unit of the violating owner shall be sold at a sales price that 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 Township, 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.
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 lower-income unit. The excess, if any, shall be applied to reimburse the Township 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 Township 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 Township 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 Township 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 Township for such balance. Failure of the owner to claim such balance within the two-year period shall automatically result in a forfeiture of such balance to the Township. Any interest accrued or earned on such balance while being held in escrow shall belong to and shall be paid to the Township, whether such balance shall be paid to the owner or forfeited to the Township.
Foreclosure by the Township 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 lower-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 Article XIV and from whom title and possession were taken by means of the Sheriff's sale shall not be entitled to any right of redemption.
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 Township may acquire title to the lower-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 lower-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 lower-income unit to be either sold at the Sheriff's sale or acquired by the Township shall obligate the owner to accept an offer to purchase from any qualified purchaser who may be referred to the owner by the Township, with such offer to purchase being equal to the maximum resale price of the lower-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 governing affordable housing units until such time as title is conveyed by the owner.
§ 170-128 Appeals.
Appeals from all decisions of an administrative agent designated pursuant to this Article XIV shall be filed, in writing, with the Executive Director of COAH or any successor state agency.