Mount Holly City Zoning Code
ARTICLE XXXB
Mandatory Affordable Housing Set-Aside
§ 149-187.9 Background.
A.
The State of New Jersey has a longstanding and well-established commitment to maximizing the opportunities for the development of housing affordable for very-low-, low-, and moderate-income households.
B.
The provision of "safe, decent and attractive housing that [lower-income households] can afford serves the community's interest in achieving an integrated, just and free society and promotes the general welfare of all citizens." De Simone v. Greater Englewood Hous. Corp., 56 N.J. 428, 441 (1970).
C.
Notably, in the Mount Laurel decisions, the New Jersey Supreme Court held that the State's Constitution makes it "plain beyond dispute that proper provision for adequate housing of all categories of people is certainly an absolute essential in promotion of the general welfare required in all local land use regulation." S. Burlington Cty. NAACP v. Mount Laurel, 67 N.J. 151, 179 (1975) (Mount Laurel I).
D.
The Court thus found that "each . . . municipality [must] affirmatively . . . plan and provide, by its land use regulations, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low and moderate cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries." Ibid.
E.
The New Jersey Legislature itself affirmed this commitment when it enacted the Fair Housing Act of 1985, which established that it is in the State's interest "to maximize the number of low and moderate units by creating new affordable housing and by rehabilitating existing, but substandard, housing in the State." N.J.S.A. 52:27D-302.
F.
Accordingly, the New Jersey Supreme Court has determined that "[a]ffordable housing is a goal that is no longer merely implicit in the notion of the general welfare. It has been expressly recognized as a governmental end and codified under the FHA." Holmdel Builders Ass'n v. Holmdel, 121 N.J. 550, 567 (1990).
G.
Since then, New Jersey's courts have consistently recognized that "[t]he public policy of this State has long been that persons with low and moderate incomes are entitled to affordable housing," because "'[t] here cannot be the slightest doubt that shelter, along with food, are the most basic human needs.'" Homes of Hope, Inc. v. Eastampton Tp. Land Use Planning Bd., 409 N.J. Super. 330, 337 (App. Div. 2009) (quoting Mount Laurel I, 67 N.J. at 178).
§ 149-187.10 Affordable housing set-aside.
A mandatory affordable housing set-aside requirement shall apply beginning with the effective date of this article to any residential development, including the residential portion of a mixed-use project, which consists of five or more new residential units at six units per acre or higher, or equivalent, which results, in whole or in part, from: (i) a municipal rezoning or zoning amendment; (ii) any variance pursuant to N.J.S.A. 40:55D-70(d), including but not limited to any use variance or a density variance increasing the permissible density; and (iii) the adoption of a new or amended redevelopment plan or rehabilitation plan. The set-aside shall be 20% where the affordable units are provided for for-sale and 15% where the affordable units are provided for rental.
§ 149-187.11 Exemptions.
Development under an adopted redevelopment plan in effect as of the effective date of this article is exempt, unless said plan is amended subsequently to increase the density.
§ 149-187.12 Additional incentives for affordable housing.
A developer subject to the mandatory affordable housing set-aside may request, and the appropriate approving authority may, at its discretion, grant additional incentives for affordable housing, including but not limited to a density bonus, a reduction in the off-street parking spaces otherwise required, and/or a reduction in the minimum setback requirements.
§ 149-187.13 Other terms applicable.
The following terms shall apply to any residential development subject to the mandatory affordable housing set-aside:
A.
All subdivision and site plan approvals of qualifying developments shall be conditioned upon compliance with the provisions of the mandatory affordable housing set-aside.
B.
No subdivision shall be permitted or approved for the purpose of avoiding compliance with the mandatory affordable housing set-aside. A developer may not, for example, subdivide a project into two lots and then plan each of them to produce a number of units below the threshold. The approving authority may impose any reasonable conditions to ensure such compliance.
C.
In the event the number of affordable housing units to be provided includes a fraction, the number shall be rounded up if the fractional amount is 0.5 or greater and rounded down if the fractional amount is less than 0.5. The developer shall provide a payment in lieu of constructing affordable units for the fraction of a unit less than 0.5. The payment in lieu shall be based on the amounts established in N.J.A.C. 5:97-6.4(c).
D.
All affordable units created shall fully comply with the Uniform Housing Affordability Controls, N.J.A.C. 5:80-26.1, et seq. ("UHAC"), including but not limited to the required bedroom and income distribution, with the sole exception that 13% of the affordable units shall be required to be restricted for very-low-income households earning 30% or less of the median income pursuant to the Fair Housing Act, N.J.S.A. 52:27D-301, et seq. ("FHA").
E.
At least 50% of the affordable units within each bedroom distribution shall be affordable to low-income households, inclusive of the at least 13% of units affordable to very-low-income households.
F.
The very-low-income affordable units shall be proportionately distributed within each bedroom distribution. In a family non-age-restricted development, at no time shall the number of one-bedroom very-low-income units exceed the number of three-bedroom very-low-income units.
G.
Affordable units shall be integrated with the market-rate units, and the affordable units shall not be concentrated in separate building(s) or in separate area(s) from the market-rate units. In buildings with multiple dwelling units, this shall mean that the affordable units shall be generally distributed within each building with market-rate units. The affordable units shall also be of the same type as the market-rate units (e.g., if the market-rate units are non-age-restricted family units, the affordable units shall be non-age-restricted family units as well). The residents of the affordable units shall have full and equal access to all of the amenities, common areas, and recreation areas and facilities as the residents of the market-rate units.
H.
Affordable units shall be subject to affordability controls of at least 30 years from the date of initial occupancy and affordable deed restrictions as otherwise provided for by UHAC, with the sole exception that very-low income shall be defined as at or below 30% of median income pursuant to the Fair Housing Act, and the affordability controls shall remain unless and until the municipality, in its sole discretion, takes action to extend or release the unit from such controls after at least 30 years.
I.
Construction of the affordable and market units shall be phased in compliance with N.J.A.C. 5:93-5.6(d).
J.
Affordable units shall be affirmatively marketed in accordance with UHAC and applicable law. The affirmative marketing shall include posting of all affordable units on the New Jersey Housing Resource Center website in accordance with applicable law.
K.
The mandatory affordable housing set-aside shall not give any developer the right to any rezoning, variance, redevelopment designation or redevelopment or rehabilitation plan approval, or any other such relief, or establish any obligation on the part of the municipality to grant such rezoning, variance, redevelopment designation, redevelopment or rehabilitation plan approval, or other such or further relief.
L.
No developer may make a payment in lieu of constructing affordable units on site, except for fractional units, as noted in Subsection C, above.
[Amended 4-10-2023 by Ord. No. 2023-1]
M.
Nothing in this article precludes the municipality from imposing an affordable housing set-aside in a development not required to have a set-aside pursuant to this article.
N.
This article shall not impose an obligation on non-residential development, including the nonresidential portion of a mixed-use development, subject to the State Non-Residential Development Fee Act, N.J.S.A. 40:45(D)-8.1, et seq. Nevertheless, all residential development, including the residential portion of a mixed-use development, must comply with the affordable housing set-aside.
O.
This article does not apply to any specific sites or specific zones that were rezoned as part of the Township's approved Housing Element and Fair Share Plan, for which density and affordable housing set-aside requirements shall be governed by the specific standards approved.