** AGENDA **
October 11, 2006
7:30 P.M.
Regular Meeting of the Mayor and Council of the Borough of Englishtown, 15 Main Street, Englishtown, New Jersey 07726.
1. Meeting Called to Order and Roll Call
2. Statement of Compliance with Sunshine Law
3. Moment of Silence and Salute to the Flag
4. Approval of Minutes – June 28, 2006
5. Committee Reports
6. Correspondence
7. Open Public Portion/Limited to Agenda Items Only
Limited to Five (5) Minutes per citizen to be determined at Borough Council’s discretion. Any and all situations regarding Borough Personnel, when names are implied or mentioned, are to be brought to the full attention of the Council through an appointment and subsequent disclosure through the Personnel Committee.
8. Old Business:
A. Ordinance No. 2006-20 – Public Hearing & Adoption
Affordable Housing Development Fee Requirements
Section 1.19.21.3
B. Ordinance No. 2006-21 – Public Hearing & Adoption
Adding Chapter 2.133 – “Affordable Housing Regulations”
9. New Business:
A. Ordinance No. 2006-22 – First Reading & Introduction
Amending Borough Code Book Chapter 2.89
Entitled “Littering”
Increasing Municipal Court Change Fund
Authorizing Redemption of Tax Sale Certificate
Block 20, Lot 5.01
D. Resolution No. 2006-159
Authorizing Payment of Borough Bills
Correcting the 2006 Tax Levy
F. Resolution No. 2006-161
Approving County Project – Conover Street
G. Resolution No. 2006-162
Accepting Resignation of Assistant CFO – Janet Halasz
H. Resolution No. 2006-163
Authorizing Agreement with Gordon’s Corner Water Co.
I. Resolution No. 2006-164
Authorizing Salary Increases for Borough Employees
J. Resolution No. 2006-165
Appointment of Municipal Deputy Clerk – Christine Robbins
10. Mr. James Mastrokalos, Water/Sewer Superintendent
Inquiry Re: standard operating procedures within the Water/Sewer Dept.
11. Public Portion
Limited to Five (5) Minutes per citizen to be determined at Borough Council’s discretion. Any and all situations regarding Borough Personnel, when names are implies or mentioned, are to be brought to the full attention of the Council through an appointment and subsequent disclosure through the Personnel Committee.
12. Executive Session
13. Adjournment
Mayor Reynolds called the meeting to order at 7:32 P.M.
Roll Call: Present: C/Soden, C/Simon, C/Carr, C/Robilotti,
Absent: C/Rucker, C/Palmieri
Also present were Mayor Reynolds, Christine Robbins, Deputy Municipal Clerk, Laurie Finger, CFO, Stuart Moskovitz, Borough Attorney and Jim Mastrokalos, Water/Sewer Department Superintendent.
Mayor Reynolds stated pursuant to N.J.S.A. 10 4-6 notification of this meeting has been (1) Published in the Asbury Park Press and Home News and the News Transcript the Official Newspapers of the Borough, (2) Posted to the Public at Borough Hall, (3) Copy has been filed with the Municipal Clerk, (4) Copy of this agenda and the Sunshine Statement has been filed with the Mayor and Council. Thus this meeting tonight is deemed in compliance with the Open Public Meetings Act.
There was a moment of silence and salute to the flag.
There being no corrections, deletions or additions, a motion to approve the Minutes of June 28, 2006 was offered by C/Soden and seconded by C/Simon. Passed on the following roll call:
Roll Call: Ayes: C/Soden, C/Simon, C/Carr, C/Robilotti
Nays: None
Absent: C/Rucker, C/Palmieri
Abstain: None
and not a pneumonia vaccine.
C/Simon
· Resignation letter received from Janet Halasz, Assistant CFO. Her last day will be November 1, 2006.
· Police Activity Report for the period of September 25th thru October 8th there were 303 total calls and 92 motor vehicle stops. There 189 routine calls for service.
C/Carr
· Police negotiations are moving forward positively.
· Waiting on the PBA Attorney.
Christine Robbins, reports:
C/Carr states that Laurie Finger will be updating website.
Mayor Reynolds opens the floor to the public for discussion limited to agenda items only.
There being no questions or comments, a motion to close the public portion was offered by C/Soden and seconded by C/Robilotti. Passed unanimously.
BOROUGH OF ENGLISHTOWN
ORDINANCE NO. 2006-20 Public Hearing & Adoption
AN ORDINANCE OF THE BOROUGH OF ENGLISHTOWN ADDING A NEW
SECTION OF CHAPTER 1.19, WHICH CHAPTER IS ENTITLED “UNIFIED
PLANNING/ZONING BOARD; LAND USE PROCEDURES;
ESTABLISHMENT; COMPOSITION, TO BE KNOWN AS SECTION 1.19.21.3,
ENTITLED “AFFORDABLE HOUSING DEVELOPMENT FEE
REQUIREMENTS”
WHEREAS, the Governing Body of the Borough of Englishtown determines that
there exists a need to amend its Land Use Regulations to conform with State Regulations promulgated in connection with the “Third Round” of obligations set forth by the New Jersey Council on Affordable Housing; and
WHEREAS, the Borough of Englishtown wishes to revise its regulations so as to
maximize the amount of money it collects pursuant to State regulations to enable it
to meet its “Third Round” obligations:
I. NOW THEREFORE BE IT ORDAINED by the Borough Council of the Borough of
Englishtown that Chapter 1.19, land use regulations, of the Code of the Borough of Englishtown is hereby amended or supplemented as follows: §1.19.21.3 Affordable Housing Development Fees
A. The purpose of this Section is to establish the standards for the collection, maintenance and expenditure of Development Fees pursuant to COAH’s rules. Fees collected pursuant to this article shall be used for the sole purpose of providing low and moderate-income housing. This article shall be interpreted within the framework of COAH’s rules on Development Fees and the statutory enactments related thereto.
B. The Borough Council finds and declares that the creation and preservation of
affordable housing in the Borough serves the public interest. The purpose of this Section is to create in the Borough a trust fund from payment of Development Fees to assist in the marshaling of public and private moneys dedicated to affordable housing projects and programs.
C. The intent of the Borough through enactment of this Section is to provide revenues with which to fund Regional Contribution Agreements, and/or to construct or rehabilitate housing for low and moderate income families in order for the Borough to meet its legal requirements to provide affordable housing pursuant to the Fair Housing Act and court opinions commonly
known as the “Mount Laurel” decisions.
D. Definitions:
AFFORDABLE HOUSING - Any housing unit with an acquisition price or rent level not exceeding the maximum resale or rent level for low and moderate income housing set forth in N.J.A.C. 5:94-7.2, 5:80-22.1, 5:80-26.2, 5:80-26.6, and 5:80-26.12, all as may be modified from time to time and/or supplemented by regulations involving new rounds of COAH obligations.
COAH -The New Jersey Council on Affordable Housing established under the
Fair Housing Act of 1985.
DEVELOPMENT FEES - Money paid by an individual, person, partnership, association, company or corporation for the improvement of property as permitted in COAH rules and regulations.
EQUALIZED ASSESSED VALUE - The value of a property determined by the Borough Tax Assessor through a process designed to ensure that all property in the Borough is assessed at the same assessment ratio or ratios required by law. Estimates at the time of building permit issuance may be determined by he Tax Assessor utilizing estimates for construction cost. Final Equalized Assessed Value will be determined at project completion by the Tax Assessor.
SUBSTANTIVE CERTIFICATION -A determination by COAH approving the Borough’s housing element and fair-share plan in accordance with the provisions of the Fair Housing Act and the rules and criteria as set forth herein.
E. Development Fee Schedule
The following fees are in addition to those set forth in §1.19.21.1 and §1.19.21.2 and
are designed to offset the low and moderate income housing requirements of the Borough:
1. Residential development.
a. Residential Development Fees shall be one per cent (1%) of the higher of the equalized assessed value for residential development, the coverage amount of the Home Owner Warranty document of a for-sale unit, or the appraised value on the document utilized for construction financing for a rental unit, provided no increased density is permitted.
b. If a “d” variance (a variance granted under the authority of N.J.S.A. 40:55D70d (5)) is granted to permit residential development where no residential development is permitted or to increase the number of dwelling units on a tract, then the additional residential units realized (above what is permitted by right under the existing zoning) will incur a bonus Development Fee of six percent (6%) rather than the Development Fee of one percent (1%) as measured in accordance with §1.19.23E.1.a. However, if the zoning on a site has changed during the two-year period preceding the filing of the “d” variance application, the base for the purposes of calculating the bonus Development Fee shall be the highest density or number of residential units permitted by right during the two
year period.
c. The Borough may collect fees exceeding those permitted in this Subsection provided the Borough enters into agreements with developers that offer a financial incentive for paying higher fees. The financial incentive may be in the form of a tax abatement. No agreement may provide for a voluntary Development Fee without also providing for a comparable offsetting incentive. All agreements are subject to COAH approval.
2. Nonresidential development.
a. Nonresidential Development Fees shall be two per cent (2%) of the higher of the equalized assessed value for nonresidential development, or the appraised value on the document utilized for construction financing, provided no increased floor area is permitted.
b. If a “d” variance (a variance granted under the authority of N.J.S.A.
40:55D-70d(4)) is granted to permit an increase in floor area, then the
additional floor area ratio (FAR) realized will incur a bonus Development Fee of six percent ( 6%) rather than the Development Fee of two percent (2%) as measured in accordance with §1.19.23E.2.a. However, if the zoning on a site has changed during the two-year period preceding the filing of the “d” variance application, the base FAR for the purposes of calculating the bonus Development Fee shall be the highest number permitted by right during the two year period.
c. The Borough may collect fees exceeding those permitted in this Subsection provided the Borough enters into agreements with developers that offer a financial incentive for paying higher fees. Such agreements may include, but are not limited to, a tax abatement, increased commercial/industrial square
footage, increased commercial/industrial lot coverage and/or increased
commercial/industrial impervious coverage in return for an increased
Development Fee. The Development Fee negotiated must bear a reasonable relationship to the additional commercial/industrial consideration to be received. All agreements are subject to COAH approval.
F. Eligible exactions, ineligible exactions and exemptions.
1. Development Fees may be collected when an existing structure is expanded or undergoes a more intense use. The Development Fee that may be collected shall be calculated on the increase in the equalized assessed value of the improved structure.
2. The Borough shall not reduce densities from preexisting levels and then
require developers to pay Development Fees in exchange for an increased density.
3. Developments that have received preliminary or final approval prior to the effective date of this Subsection shall be exempt from Development Fees unless the developer seeks a substantial change in the approval; for example, a substantial alteration in site layout, development density or types of use within the development.
4. The Borough exempts the following types of development from the imposition
of Development Fees: a. Nonprofit organizations which have received tax exempt status pursuant to Section 501(c)(3) of the Internal Revenue Code, providing current evidence of that status is submitted to the Borough Administrator, together with a certification that services of the organization are provided at reduced rates to those who establish an inability to pay existing charges.
b. Federal, state, county and local governments.
c. Public utilities under the jurisdiction of the New Jersey Board of Public
Utilities to the extent that the construction for which approval is sought is of a facility which shall house equipment only and not to be occupied by any employees.
d. Person or entity constructing an inclusionary residential development.
e. Person or entity seeking a construction permit for a unit which when it
received subdivision or site plan approval was part of an application for less than three residential units.
f. Person or entity seeking a construction permit for a structure which shall be ancillary to and used in connection with a farm.
g. Person or entity seeking a construction permit to add to or remodel a residential structure provided the equalized assessed value of the improvement is less than the equalized assessed value of the original structure and further provided that no new dwelling units are created.
G. Collection of Development Fees.
1. The Borough shall collect 50% of the fee on any specific development prior to
and as a condition of the issuance of the building permit therefor. The remaining portion shall be collected prior to and as a condition of the issuance of the certificate of occupancy. Once the final equalized assessed value of a particular development has been determined by the Tax Assessor, and such final equalized assessed value is greater than the estimated equalized assessed value, the developer shall, within 10 business days from receipt of notification from the Borough, pay to the Borough the difference between the Development Fees required to be paid by the developer once such final equalized assessed value has been determined and the estimated Development Fees actually paid by the developer. In the event that the estimated equalized assessed value proves to have been too high, the Borough shall promptly refund the difference between the estimated Development Fees actually paid by the developer and the Development Fees required to be paid by the developer once such final equalized assessed value has been determined.
2. None of the above permits or certificates shall be issued until receipt of the
Development Fee has been certified by the Borough Administrator.
H. Housing Trust Fund.
The Borough shall establish an interest-bearing Housing Trust Fund to be held in a bank with which the Borough does financial business for the purpose of receiving Development Fees from residential and nonresidential developers. All Development Fees paid by developers pursuant to this Section 1.19.21.3 shall be deposited in this fund. In establishing the Housing Trust Fund, the Borough shall provide whatever express written authorization that may be required by said bank in order to permit COAH to direct the disbursement of Development Fees pursuant to Subsection L of
this Section 1.19.21.3. No money shall be expended from the Housing Trust Fund unless the expenditure conforms to a spending plan approved by COAH.
I. Use of funds.
1. The Borough shall use revenues collected from Development Fees for any activity approved by the Borough for addressing the Borough’s fair-share obligation. Such activities include, but are not limited to, rehabilitation, new construction, regional contribution agreements, purchase of land for low and moderate income housing, improvement of land to be used for low and moderate income housing, extension and/or improvements of roads and infrastructure to low and moderate income housing sites, assistance designed to render units to be more affordable and administration of the implementation of the housing element. The expenditures of all money shall conform to a spending plan approved by COAH.
2. No more than 20% of the revenues collected from Development Fees shall be
expended on administration costs necessary to develop, revise or implement the housing element, including, but not limited to, salaries and benefits for Borough employees or consultant fees necessary to develop or implement a rehabilitation program, a new construction program, a regional contribution agreement, a housing element, and an affirmative marketing program.
Administrative funds may be used for income qualification of households, monitoring the turnover of sale and rental units, and compliance with COAH’s monitoring requirements. Development Fees shall not be used to defray the costs of existing staff, except that COAH may consider permitting fees to defray the cost of staff whose sole responsibility is to implement the housing element.
J. Monitoring.
The Borough shall complete and return to the Borough all monitoring forms related to the collection of Development Fees, expenditures of revenues, and implementation of the spending plan certified by COAH. Financial reports and annual program implementation and monitoring reports shall be completed by the Borough on forms designated by COAH.
K. Spending plans.
The Borough shall submit to COAH, if required for certification, a spending plan for the Development Fees collected pursuant to this Section. Plans to spend Development Fees shall consist of the following information:
1. A projection of revenues anticipated from imposing fees on development, based
on historic activity;
2. A description of the administrative mechanism that the Borough will use to
collect and distribute revenues;
3. A description of the anticipated use of all Development Fees;
4. A schedule for the creation or rehabilitation of housing units;
5. In the event the Borough envisions being responsible for public sector or
nonprofit construction of housing, a pro forma statement of the anticipated
costs and revenues associated with the development;
6. The manner through which the Borough will address any expected or
unexpected shortfall if the anticipated revenues from Development Fees are
not sufficient to implement the plan; and
7. Any other information requested by COAH to be included.
L. Expending of fees as result of certain occurrences.
1. In accordance with N.J.A.C. 5:94-6.16, the Borough's ability to collect fees and
COAH’s approval of an ordinance and spending plan shall be conditioned on
compliance with all requirements of this subsection. Occurrence of the
following may result in COAH taking an action pursuant to Subsection 2. below:
a. Failure to meet deadlines for information required by COAH in its review of
a Housing Element and Fair Share Plan, Development Fee ordinance or plan
for spending fees;
b. Failure to address COAH's conditions for approval of a plan to spend Development Fees, payments in lieu of constructing affordable units on site and funds from re-sales of units with extinguished controls within the deadlines imposed by COAH;
c. Failure to address COAH's conditions for substantive certification within deadlines imposed by COAH;
d. Failure to submit accurate annual monitoring reports pursuant to N.J.A.C. 5:94-6.13(a) within the time limits imposed by COAH;
e. Failure to implement the spending plan and expend the funds within the time schedules specified in the spending plan;
f. Expenditure of Development Fees, payments in lieu of constructing affordable units on site and funds from the sale of units with extinguished controls on activities not permitted by COAH;
g. Revocation of certification; or
h. Other good cause demonstrating that the revenues are not being used for
the approved purpose.
2. In the event any of the conditions described in subsection 1., above occur, COAH shall be authorized, on behalf of the Borough, to direct the manner in which all funds in the affordable housing trust fund shall be expended. Such revenues shall immediately become available for
expenditure once COAH has notified the Borough Clerk and Chief Financial Officer that such a condition has occurred. In furtherance of the foregoing, the Borough shall, in establishing the trust fund pursuant to N.J.A.C. 5:94-6.11, ensure that the Borough has provided written
authorization, in the form of an escrow agreement, to permit COAH to direct the disbursement of such revenues from the account following the delivery to the bank of the aforementioned written notification provided by COAH to the Borough’s Clerk and Chief Financial Officer.
II. BE IT FURTHER ORDAINED THAT:
A. All ordinances or parts of ordinances inconsistent herewith are hereby repealed
to the extent of the inconsistency.
B. If any section, subsection, sentence, clause, phrase or portion of this Ordinance
is for any reason held to be invalid or unconstitutional by a court of competent
jurisdiction, such portion shall be deemed a separate, distinct and independent
provision, and such holding shall not affect the validity of the remaining
portions hereof.
C. This Ordinance shall take effect upon passage and publication in accordance
with applicable law and filing with the Monmouth County Planning Board. .
Offered By: C/Soden
Seconded By: C/Carr
Roll Call: Ayes: C/Soden, C/Simon, C/Carr, C/Robilotti
Nays: None
Abstain: None
Absent: C/Rucker, C/Palmieri
BOROUGH OF ENGLISHTOWN Public Hearing & Adoption
ORDINANCE NO. 2006-21
AN ORDINANCE OF THE BOROUGH OF ENGLISHTOWN ADDING A NEW CHAPTER, CHAPTER 2.49, ENTITLED “AFFORDABLE HOUSING REGULATIONS”
WHEREAS, the governing body of the Borough of Englishtown determines that there exists a need to provide for regulation of the Affordable Housing located within the Borough and other Affordable Housing for which the Borough is responsible:
Now therefore be it ordained by the Borough Council of the Borough of Englishtown that a new chapter, Chapter 2.49, “Affordable Housing Regulations” of the Code of the Borough of Englishtown is hereby added as follows:
2.49.1. Title.
This Chapter shall be known and may be cited as the “Affordable Housing Regulations of the Borough of Englishtown.”
2.49.2. Intent and purpose.
It is the intent and purpose of this Chapter to implement the Housing Plan Element and Fair-share Plan in accordance with Affordable Housing regulations established and, from time to time, amended by the New Jersey Council on Affordable Housing in accordance with the Fair Housing Law, N.J.S.A. 52:27D-301, and New Jersey Council on Affordable Housing (hereinafter “COAH”) Procedural and Substantive Regulations.
2.49.3. Definitions.
All terms used in this Chapter, shall have the meanings established in the regulations promulgated by COAH, unless the context clearly indicates otherwise. The following
terms will have the definitions set forth as follows:
AFFORDABLE HOUSING - Any housing unit with an acquisition price or rent level not exceeding the maximum resale or rent level for low and moderate income housing set forth in N.J.A.C. 5:94-7.2, 5:80-22.1, 5:80-26.2, 5:80-26.6, and 5:80-26.12, all as may be modified from time to time and/or supplemented by regulations involving new rounds of COAH obligations.
COAH - The New Jersey Council on Affordable Housing established under the Fair Housing Act of 1985.
RENTAL UNITS — Units specifically built at the time of construction for the sole purpose of being occupied by tenants and not owners of Affordable Housing units.
2.49.4. Affordable Housing requirements.
A. Purpose. The purpose of these provisions is to provide a realistic opportunity for the construction of Affordable Housing for households with low and moderate incomes as required by the New Jersey Supreme Court and the Fair Housing Law (N.J.S.A. 52:27D-301).
B. Designation of Administrative Authority. For the purposes of administering these Affordable Housing provisions, the Borough Council, or entity designated by the Borough Council shall be the responsible agent of the municipality for the purpose of monitoring the occupancy, resale and rental restrictions of low and moderate income housing units and shall be referred to as the “Authority.” The Authority will have the power to take enforcement action, as authorized by Section 2.49.5 of this Chapter, against any owner or tenant of an Affordable Housing unit for violation of this chapter, the Affordable Housing Plan or the COAH deed restrictions.
C. Development Approvals. Development approvals shall provide for Affordable Housing opportunities as set forth herein.
(1) Applicability and exemptions. These requirements shall apply to approvals granted by the Unified Planning/Zoning Board of Adjustment as follows:
(a) All approvals of use variances, site plans, or subdivisions, including extensions and substantial revisions, as provided below in Subsection C(2), shall be made subject to mandatory provision of Affordable Housing except for classes of uses contained in Subsection C(1)(b) below. A substantial revision to a development approval shall, for the purposes of these Affordable Housing regulations, be any revision which increases or decreases the number of residential units or amount of nonresidential floor space by more than 15%.
(b) Exempted from these provisions shall be approvals for the following classes of development which do not constitute a portion of the state or housing region’s tax ratable wealth:
[1] Utility facilities;
[2] Educational, cultural and outdoor recreational facilities;
[3] Quasi-public uses including churches, clubs, lodges and similar uses;
[4] Public uses; and
[5] Hospital uses.
(c) All final approvals not included in Subsection C(1)(a), or (b) above shall provide for the payment of any required Affordable Housing development fee.
(2) Mandatory provision of Affordable Housing. All development, other than exempted development, shall provide for Affordable Housing through actual construction, through an Affordable Housing development fee or a combination of both. Subsection 95-13.4C(2)(d), below, shall apply to establish the Affordable Housing requirement for any development approved subsequent to the adoption of the Substantive Rules of the New Jersey Council on Affordable Housing for the period beginning on December 20, 2004, and to the adoption by the Borough of this ordinance.
(a) The following provisions shall apply to development approvals to enable the Borough to address the Borough’s third round growth share obligation for Affordable Housing.
[1] Any residential development in any zoning district in the Borough of Englishtown proposing nine or more dwelling units shall set aside 11.1% of said units (rounded to the next higher number if 0.5 or greater) for Affordable Housing as said term is defined under FHA and COAH rules and regulations. In the event the number of units constructed is not a multiple of nine and the number of units does not round up, the developer shall pay the Affordable Housing development fee for those units. For example, if a developer constructs 12 units, it must reserve one unit for a low income household and pay the Affordable Housing development fee for three units, as set forth in Chapter 1.19.21.3 of the Code of the Borough of Englishtown. The residential development shall comply with the following:
[a] The developer shall construct the affordable units on site with the market rate units of the residential development. The Borough, in its sole discretion, may approve the construction of affordable units off site, provided that the developer demonstrates, and the Borough determines, that the off-site location is within the Borough and has been planned and zoned for residential development. The developer shall further demonstrate to the satisfaction of the Borough that the off-site location is approvable, suitable and developable for Affordable Housing.
[b] Affordable dwelling units shall be built in accordance with the following schedule:
Percentage of Market Rate Minimum Percentage of Units Completed
Low and Moderate Income Units Completed
25 0
25 + 1 unit 10
50 50
75 75
90 100
The Affordable Housing units shall be disbursed throughout the inclusionary development to the greatest extent possible and shall be designed to be architecturally indistinguishable from the market rate units to the greatest extent possible. To that end, the scale, massing, roof pitch and architectural detailing (such as selection of exterior materials, windows, doors, etc.) of the buildings containing the Affordable Housing units shall be similar to and compatible with that of the market rate units.
[c] Residential development proposing the new construction of eight or fewer residential dwelling units shall satisfy the Affordable Housing requirement by the payment of the Affordable Housing development fee set forth in Chapter 1.19.21.3 of the Code of the Borough of Englishtown.
[2] Nonresidential development located within a zone that permits the development of residential uses and that creates 25 jobs or more shall provide one non age-restricted affordable residential unit on site for every 25 jobs projected to be created by the development. The calculation of the number of jobs and employment opportunities shall be in accordance with Appendix E to N.J.A.C. 5:94-1 et seq. entitled “UCC Use Groups for Projecting and Implementing Nonresidential Components of Growth Share.” If the calculation for the number of jobs results in a fraction of an affordable unit, then the number of units required will be rounded up to the next higher number, if the fraction is 0.5 or greater. If the fraction is less than 0.5, then the development shall be subject to a development fee that will be calculated based upon the proportion of building floor area generating the fractional unit. The Borough, in its sole discretion, may approve the construction of the affordable units off site, provided that the developer demonstrates, and the Borough determines, that the off-site location is located within the Boroughand has been planned and zoned for the residential development. The developer shall further demonstrate to the satisfaction of the municipal agency that the off-site location is approvable, suitable and developable for Affordable Housing.
[3] Nonresidential development located within a zone that does not permit residential development shall satisfy its Affordable Housing obligation by the payment of the Affordable Housing development fee set forth in Chapter 1.19.21.3 of the Code of the Borough of Englishtown.
[4] Nonresidential development generating less than 25 jobs shall satisfy its Affordable Housing obligation by the payment of the Affordable Housing development fee set forth in Chapter 1.19.21.3 of the Code of the Borough of Englishtown.
[5] The applicant for approval of a residential or nonresidential development shall present the planned method of Affordable Housing compliance to the municipal agency at the time of application filing. The plan submitted by the applicant for Affordable Housing compliance shall be based upon the full build out of the property for residential and/or nonresidential development.
[6] Full and complete satisfaction and compliance with the Affordable Housing requirements of the Borough shall be a specific, automatic, essential and nonseverable condition of all approvals and any extension of approval. Pursuant to this condition, the applicant must demonstrate that it has satisfied the Affordable Housing requirement prior to obtaining the first building permit, and compliance with the Affordable Housing requirement shall be a continuing condition of all approvals for development.
[7] The affordable unit(s) to be produced shall be available to a low-income individual or household should only one affordable unit be required. Thereafter, the units shall be split evenly between low and moderate income individuals and households except in the event of an odd number, in which event the unit shall be a low-income unit. Pursuant to N.J.A.C. 5:94, et seq. and N.J.A.C. 5:80-26 et seq., all affordable units shall comply with COAH’s rules and policies, including, but not limited to, phasing, bedroom distribution, controls on affordability, range of affordability, affirmative marketing, income qualification, etc. It shall be the developer’s responsibility, at its cost and expense, to arrange for the administering authority approved by COAH and designated by the Borough to ensure full COAH compliance and file such certifications, reports and/or monitoring forms as may be required to verify COAH compliance for each affordable unit.
[8] As to residential developers, nothing herein shall affect the Borough’s ability to generate more Affordable Housing than the one affordable residential unit for eight market rate residential units standard set forth above in the event that the developer secures a density bonus or other compensatory benefit through a zoning change or through a use variance.
[9] As to nonresidential developers, nothing herein shall affect the Borough’s ability to generate more Affordable Housing than the one affordable residential unit for every 25 jobs standard set forth above in the event that the developer secures an increased floor area ratio or other compensatory benefit through a zoning change or through a use variance.
(3) Requirements for Affordable Housing. Developments which include affordable housing units shall be subject to the following provisions:
(a) Low income housing. Low income housing shall be affordable, according to Federal Department of Housing and Urban Development or other recognized standards for home ownership and rental costs, and occupied or reserved for occupancy by households with a gross household income equal to 50% or less of the median gross household income for households of the same size within the housing region in which the housing is located, and subject to affordability controls.
(b) Moderate income housing. Moderate income housing shall be affordable, according to Federal Department of Housing and Urban Development or other recognized standards for home ownership and rental costs, and occupied or reserved for occupancy by households with a gross household income in excess of 50% but less than 80% of the median gross household income for households of the same size within the housing region in which the housing is located, and subject to affordability controls.
(c) Age restriction. The sales and rentals of Affordable Housing units constructed within the Borough may be age-restricted to senior citizens age 62 or older as defined by and in accordance with the Federal Fair Housing Act and N.J.A.C. 5:93-5.1 and regulated by N.J.A.C. 5:93-5.12, provided that no more than the maximum number permitted by N.J.A.C. 5:93-5.12 of the total affordable housing units constructed within the Borough shall be age-restricted. A request to age restrict housing units may only be granted after the Unified Planning/Zoning Board of Adjustment has received the consent of the Borough Council. In designing its project, the applicant may propose constructing the senior citizen restricted affordable units in the same building or buildings in order to maximize the potential of preserving a more tranquil lifestyle for the senior citizen residents; and to the foregoing extent, the requirement of integration of the affordable units with conventional units is modified.
(d) Fees. Developers of housing units for low and moderate income households shall be subject to fees set forth by the Authority for the initial sales of affordable 75 units.
(e) Bedroom distribution.
[1] The following bedroom distribution shall apply to the total number of affordable units in each development providing Affordable Housing units:
[a] The combination of efficiency and one-bedroom units is at least 10% and no greater than 20% of the total low and moderate income units.
[b] At least 30% of all low and moderate income units are two-bedroom units; and
[c] At least 20% of all low and moderate income units are three-bedroom units.
[2] In the event COAH’s Rules shall provide for a bedroom mix different than the foregoing, the requirements of COAH shall control and the foregoing shall be deemed modified for all projects which have not received final site plan or subdivision approval.
(f) Location and design. Low and moderate income inclusionary housing shall be designed in accordance with the following provisions:
[1] 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.
[2] 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.
[3] Inclusionary developments shall be designed to integrate the low and moderate income units with the market units.
(g) 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 N.J.A.C. 5:93-9.3 et seq., Resale/Rental Control, at the time of sale, resale, rental or rerental regardless of the availability of federal, state, county or Borough subsidy programs.
(h) Low and moderate income units shall utilize the same heating source as market units within inclusionary developments.
D. Certificates of Occupancy. Certificates of occupancy for developments which include Affordable Housing units shall be subject to the following additional provisions:
(1) Phasing of affordable units. Affordable Housing units shall be built, occupied and receive certificates of occupancy in accordance with the following schedule:
Percentage of Low Percentage of
and Moderate Income Market Housing
Units Completed Units Completed
0 25
10 25 + 1 unit
50 50
75 75
100 90
(2) 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 unit shall issue unless there is a written determination by the Authority that the unit is to be controlled by a deed restriction and mortgage lien as adopted by COAH.
(3) 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 Borough shall not issue such certificate unless there is a written determination by the Authority that the unit is to be controlled by the deed restriction and mortgage lien required by COAH.
(4) The certificate of reoccupancy shall not be required where there is a written determination by the Authority that controls are allowed to expire or in that the repayment option is being exercised pursuant to N.J.A.C. 5:93-9.4.
E. Resale/rerental Controls. A developer of an affordable inclusionary housing development shall incorporate deed restrictions on all dwelling units sold or rented as units affordable to low and moderate income households pursuant to N.J.A.C. 5:93-9.2, Council on Affordable Housing Substantive Rules. Affordability controls shall remain in force for a period not less than 30 years unless a longer period is required in accordance with N.J.A.C. 5:93-9.2, shall run with the land and shall place limitations upon the resale/rerental of affordable units in accordance with N.J.A.C. 5:93-9.4 through 5:93-9.16 and by means of any deed restrictions and/or lien documents promulgated by COAH.
(1) Exempt sales. Sales exempted from resale/rerental controls shall include 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.
(2) Nonexempt sales or rentals. Owners of affordable units intending to sell or rent their units prior to the expiration of deed restrictions shall comply with the following procedure:
(a) Prior to reselling or renting a low or moderate income unit, the owner of an Affordable Housing unit shall provide written proof to the Authority that the resale or rental has been approved by the Authority.
(b) Unless otherwise exempt pursuant to this chapter, the owner of an affordable housing unit shall only resell or rent a low or moderate income unit to a qualified purchaser or tenant as determined by the Authority or the authorized state agency.
(c) Unless otherwise exempt pursuant to this chapter, the owner of an affordable housing unit shall be responsible for guaranteeing that the necessary documents are executed and filed at the closing of title or rental of a low or moderate income unit to assure that the unit remains affordable to and occupied by low or moderate income households. Copies of all such documents shall also be provided to the Authority no later than 60 days after the date of closing.
(d) An owner of an Affordable Housing unit shall not permit the occupation of its unit in violation of the COAH regulations, this chapter or the Borough’s Affordable Housing Plan.
(e) An owner of an affordable unit shall be subject to fees set forth by the Authority for the monitoring and transfers of affordable units.
(3) Deed restrictions, notice of sale. All deed restrictions governing low and moderate income housing units shall require the owner to notify the Authority and COAH by certified mail of any intent to sell the unit at least 90 days prior to entering into an agreement for the first nonexempt sale after controls have been in effect on the housing unit for the period specified in N.J.A.C. 5:93-9.2.
(4) Deed restrictions, sales options. The deed restrictions governing the deeds of low and moderate income housing units shall include an option permitting purchase of the Affordable Housing unit at the maximum allowable restricted sales price at the time of the first nonexempt sale after controls on affordability have been in effect on the unit for the period specified in N.J.A.C. 5:93-9.2. The option to buy shall be first available to the Borough, then the New Jersey Department of Community Affairs, Housing and Mortgage Finance Agency, or a qualified nonprofit agency as determined by COAH.
5) Options. Rights shall be held and exercised in accordance with the following provisions.
(a) Upon receipt of notice, the option to buy the unit at the maximum allowable restricted sales price shall be available for 90 days. The Authority shall first notify the Borough, then the New Jersey Department of Community Affairs, Housing and Mortgage Finance Agency, and COAH that the unit is for sale. If the Borough exercises this option, it may enter into a contract of sale. If the Borough fails to exercise this option within 90 days, the first of the other entities giving notice to the seller of its intent to purchase during the ninety-day period shall be entitled to purchase the unit. If the option to purchase the unit at the maximum allowable restricted sales price is not exercised by a written offer to purchase the housing unit within 90 days of receipt of the intent to sell, the owner may proceed to sell the housing unit (pursuant to N.J.A.C.5-93-9.8). If the owner does not sell the unit within one year of the date of the delivery of notice of intent to sell, the option to buy the unit shall be restored, and the owner shall be required to submit a new notice of intent to sell at least 90 days prior to any future proposed date of sale.
(b) Any option to buy a housing unit at the maximum allowable restricted sales price shall be exercised by certified mail and shall be deemed exercised upon mailing.
(c) An eligible seller of a low or moderate income unit which has been controlled for the period established in N.J.A.C. 5:93-9.2, and who has provided notice of an intent to sell may proceed with the sale if no eligible entity as outlined in N.J.A.C. 5:93-9.4(c) and 9.7 exercises its option to purchase within 90 days. Subject to N.J.A.C. 5:93-9.9, the seller may elect the affordable resale option or the repayment option.
[1] Affordable resale option. The seller may sell to a qualified low and moderate income household at the maximum allowable restricted sales price in accordance with existing COAH regulations, provided that the unit is regulated by the deed restriction and lien adopted by COAH for a period of up to 20 years.
[2] Repayment option. Provided that the Borough has not suspended the repayment option, the seller may sell to any purchaser at market price, provided that 95% of the price differential is paid to the Authority, as an instrument of the Borough, at closing. Such sale shall be approved by the Authority.
(d) Municipal option. The Borough of Englishtown may elect to purchase a low or moderate income unit provided for in N.J.A.C. 5:93-9.4, and may:
[1] Convey or rent the housing unit to a low or moderate income household purchaser or tenant at a price or rent not to exceed the maximum allowable restricted sales price or rental, provided that the unit is controlled by a deed restriction in accordance with Technical Appendix E of N.J.A.C. 5:93-1 et seq. or an alternative approved by COAH; or
[2] Convey the unit at fair market value subject to the provisions of the following subsection.
[3] Upon purchase, the Borough may maintain the unit as an Affordable Housing unit or convey it at fair market value in accordance with the following:
[a] Notify COAH of any proposed sale and sales prices 90 days before closing;
[b] Notify COAH of the price differential as defined in COAH regulations; and
[c] Deposit the price differential in the Borough Affordable Housing Trust Fund.
(e) State option. When the Department of Community Affairs or Housing and Mortgage Finance Agency elects to purchase a low or moderate income unit pursuant to N.J.A.C. 5:93-9.4, it may:
[1] Convey or rent the housing unit to a low or moderate income household purchaser or tenant at a price or rent not to exceed the allowable restricted sales price or rental; or
[2] Convey the unit at fair market value and utilize the price differential to subsidize the construction, rehabilitation or maintenance of low and moderate income housing within the housing region.
(f) Nonprofit option. Nonprofit agencies may apply to COAH at any time for the right to purchase low or moderate income housing units subsequent to the period of controls on affordability, provided that the unit remains controlled by a deed restriction in accordance with Technical Appendix E in N.J.A.C. 5:93-1 et seq., or an alternative approved by COAH. Nonprofit agencies that have been designated by COAH shall be eligible to purchase low or moderate income housing units pursuant to N.J.A.C. 5:93-9.4 for the sole purpose of conveying or renting the housing unit to a low or moderate income household purchaser or tenant at a price or rent not to exceed the allowable restricted sales price or rental. Low income housing units shall be made available to low income household purchasers or tenants and the housing unit shall be regulated by the deed restriction and lien adopted by COAH. The terms and length of the controls on affordability shall be the same as those required by N.J.A.C. 5:93-9.2.
F. Administration. The Affordable Housing regulations shall be administered in accordance with the following provisions.
(1) Determination of affordable price/rent. The affordability of a low or moderate income unit shall be a function of the rent or sales price which shall be established so as to ensure that occupants do not pay a sum of shelter costs greater than 30% of gross annual income for rental units or 28% of gross annual income for sales units in accordance with COAH regulations as follows:
(a) Shelter costs for rental units shall include gross rent, including an allowance for utilities. The allowance for utilities shall be consistent with the utility allowance observed for HUD use in New Jersey;
(b) Shelter costs for sales units shall include principal, interest, taxes, condominium fees and insurance. The master deeds of inclusionary developments shall provide that condominium or homeowner association fees or special assessments for low and moderate income purchasers shall be 100% of the fees paid by market purchasers and that once established within the master deed, the percentage shall not be amended without prior approval of COAH.
(c) Sales costs of a unit shall be based on a presumed five-percent down payment;
(d) Rental and sales costs shall be fixed for a unit depending on bedroom number calculated on the following basis as to household size:
[1] Efficiency units. Efficiency units shall be affordable to one person households.
[2] One bedroom. One bedroom units shall be affordable to 1.5 person households.
[3] Two bedrooms. Two bedroom units shall be affordable to three person households.
[4] Three bedrooms. Three bedroom units shall be affordable to 4.5 person households. One half of all three bedroom units shall be affordable to four person households and one half of all three bedroom units shall be affordable to five person households.
(e) In the case of owner occupied housing rehabilitation assistance, affordability shall be based on unit occupancy by a low or moderate income household.
(2) Pricing distribution of housing units. The maximum average rent and price of low and moderate income housing units shall be, affordable to households earning 57.5% of median income as contained in N.J.A.C. 5:93-7.4, establishing rents and prices of units.
(3) Affordability for sales units. Moderate income sales units are available for at least three different prices and low income sales units are available for at least two different prices.
(4) Determination of sales values. Values of sales units shall be determined in accordance with the following provisions:
(a) Fair market value. Fair market value shall be established on the basis of the unrestricted price of a low or moderate income housing unit if sold at a current real estate market rate.
(b) Maximum allowable restricted sales price. The maximum allowable restricted sales price shall be determined in accordance with COAH regulations at the date of a proposed contract of sale.
(c) Price differential. Price differential shall be established as the difference between the maximum allowable restricted sales price and the fair market value, as determined at the date of a proposed contract of sale, after deducting reasonable real estate broker fees.
(5) Approval required to exercise repayment option. If the sale will be to a qualified low and moderate income household, the Authority shall certify the income qualifications of the purchaser and shall ensure the housing unit is regulated by the restrictive covenant and lien required by COAH.
(a) The Authority shall examine any contract of sale containing a repayment option to determine if the proposed sales price bears a reasonable relationship to the housing unit’s fair market value. In making this determination, the Authority may rely on comparable sales data or an appraisal. The Authority shall not approve any contract of sale where there is a determination that the sales price does not bear a reasonable relationship to fair market value. The Authority shall make a determination within 20 days of receipt of the contract of sale and shall calculate the repayment option payment.
(b) The Authority shall adopt an appeal procedure by which a seller may submit written documentation requesting the Authority to:
[1] Recompute the repayment obligation if the seller believes an error has been made; or
[2] Reconsider a determination that a sales price does not bear a reasonable relationship to fair market value. A repayment obligation determination made as a result of an owner’s appeal shall be a final administrative determination of the Authority.
(c) The repayment shall occur at the date of closing and transfer of title for the first nonexempt transaction after the expiration of controls on affordability.
(d) Repayment proceeds shall be deposited in the Englishtown Borough Affordable Housing Trust Fund. Money deposited in the Englishtown Borough Affordable Housing Trust Fund trust account from such sale may not be expended until Englishtown Borough submits and COAH approves a repayment housing plan. COAH may approve the repayment housing plan if it determines that it provides a realistic opportunity for the creation, rehabilitation or maintenance of low and moderate income housing.
(6) Borough rejection of repayment option. Englishtown Borough shall have the right to determine that the most desirable means of promoting an adequate supply of low and moderate income housing is to prohibit the exercise of the repayment option and maintain controls on lower income housing units sold within the Borough beyond the period required by N.J.A.C. 5:93-9.2. Such determination shall be made by resolution of the Borough Committee and shall be effective upon filing with COAH and the Authority. The resolution shall specify the time period for which the repayment option shall not be applicable. During such period, no seller in Englishtown Borough may utilize the repayment option permitted by N.J.A.C. 5:93-9.8. If the Borough exercises the rejection of repayment option outlined above, it shall:
(a) Provide public notice in a newspaper of general circulation; and
(b) Notify the Authority and COAH of the Borough Committee’s action.
The Authority shall ensure that the deed restriction on all affected housing units
reflects the extended period of controls.
(7) Continued application of options to create, rehabilitate or maintain low and
moderate income housing units. When a housing unit has been maintained as a lowor
moderate income unit after controls have been in effect for the period specified in N.J.A.C. 5:93-9.2, the deed restriction governing the housing units shall allow the Borough, the state, nonprofit agencies and sellers of low and moderate income housing units to again exercise all the same options as provided in this section.
(8) Affirmative marketing plan. Englishtown Borough shall provide for the marketing of all low and moderate income housing units developed pursuant to the provisions of this section in accordance with the provisions described below:
(a) The affirmative marketing plan. These requirements for an affirmative marketing plan apply to all developments that contain low and moderate income dwelling units. The affirmative marketing plan is a regional marketing strategy designed to attract buyers and/or renters of all majority and minority groups, regardless of sex, age or number of children, to housing units which are being marketed by a developer/sponsor, municipality and/or designated administrative agency of Affordable Housing. The plan will address the requirements of N.J.A.C. 5:93-11. In addition, the plan prohibits discrimination in the sale, rental, financing or other services related to housing on the basis of race, color, sex, religion, handicap, age, familial st