THE TOWNSHIP OF EWING

COUNTY OF MERCER, NEW JERSEY

ORDINANCE NO. 06-24

1st Reading 06-13-06 Date to Mayor 06-28-06

2nd Reading &

Public Hearing 06-27-06 Date Returned 06-29-06

Date Adopted: Date Resubmitted to Council ___________

06-27-06 Approved as to Form of Legality

Effective Date:

07-18-06

AN ORDINANCE AMENDING THE REVISED GENERAL ORDINANCES OF THE TOWNSHIP OF EWING,

COUNTY OF MERCER, STATE OF NEW JERSEY, AMENDING CHAPTER 46, AFFORDABLE HOUSING,
AND CHAPTER 15, LAND DEVELOPMENT, TO FACILITATE THE PROVISION OF AFFORDABLE
HOUSING IN ACCORDANCE WITH THE COAH ROUND 3 GROWTH SHARE RULES IN CONNECTION
WITH RESIDENTIAL AND NON-RESIDENTIAL GROWTH AND DEVELOPMENT

First Reading

MEMBER AYE NAY ABS NV RES SEC

Murphy

Apai

Steinmann

Wollert

Summiel

Second Reading

MEMBER AYE NAY ABS NV RES SEC

Murphy

Apai

Steinmann

Wollert

Summiel

By ____________________________Date _____________Accepted ______Rejected ______

Mayor

Reconsidered
By Council _________________________________Override Vote YEA ______NAY _____

__________________________________ _________________________________
President of the Council Municipal Clerk

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 TOWNSHIP OF EWING

ORDINANCE NO. 06-24

AN ORDINANCE AMENDING THE REVISED GENERAL ORDINANCES OF THE

TOWNSHIP OF EWING, COUNTY OF MERCER, STATE OF NEW JERSEY, AMENDING
CHAPTER 46, AFFORDABLE HOUSING, AND CHAPTER 15, LAND DEVELOPMENT,
TO FACILITATE THE PROVISION OF AFFORDABLE HOUSING IN ACCORDANCE
WITH THE COAH ROUND 3 GROWTH SHARE RULES IN CONNECTION WITH
RESIDENTIAL AND NON-RESIDENTIAL GROWTH AND DEVELOPMENT

NOW, THEREFORE, BE IT ORDAINED by the Township Council of the Township

of Ewing that Chapter 46, AFFORDABLE HOUSING, and CHAPTER 15, LAND
DEVELOPMENT, of the Code of the Township of Ewing, is hereby amended and
supplemented as follows:

Section 1.

The purpose of this Ordinance is to amend Chapter 46, Affordable Housing, and Chapter 15,
Land Development, as follows:

Chapter 46, Affordable Housing, and Chapter 15, Land Development, Section §15-102
Affordable Housing Development Fees, is hereby amended to add a new Section §15-102.4,
Provision of Affordable Housing Pursuant to COAH Round 3 Growth Share Regulations, as
follows:

§15-102.4 Provision of Affordable Housing Pursuant to COAH Round 3 Growth Share

Regulations.

A. Purpose and findings. The purpose of this section is to facilitate the provision of
affordable housing in connection with residential and non-residential development in
compliance with the New Jersey Council on Affordable Housing Round 3 Rules
approved December 20, 2004. This ordinance is based on the following findings of the
Township Council:

(1) The New Jersey Supreme Court and New Jersey Legislature have recognized in
So. Burl. Co. NAACP v. Mount Laurel, 92 N.J. 158 (1983) (“Mount Laurel II”)
and the Fair Housing Act, N.J.S.A. 52:27D-301 et seq. (“FHA”) that New Jersey
municipalities have responsibilities concerning the need to provide affordable
housing for low and moderate income households; and,

(2) The Legislature conferred upon the New Jersey Council on Affordable Housing
(“COAH”) “primary jurisdiction for the administration of housing obligations in
accordance with sound regional planning considerations in this State.” (N.J.S.A.
52:27D-304 (a)); and,

(3) In Mount Laurel II, the New Jersey Supreme Court ruled that municipalities had
the power to address the Mount Laurel responsibilities that the Court had created
through "inclusionary devices" and rejected the notion "that inclusionary
measures amount to a taking without compensation." (see Mount Laurel II at
271); and,

(4) In Mount Laurel II, the Supreme Court also stated, "[z]oning does not require that
land be used for maximum profitability and, on occasion, the goals may require
something less." (see Mount Laurel II at 274 n. 34); and,

(5) In the case entitled Holmdel Builders Association v. Township of Holmdel, 121
N.J. 550, 582 (1990), the Supreme Court referred to its Mount Laurel II decision
and emphasized that in designing inclusionary ordinances, "no density bonuses,
compensatory benefits, or subsidies were specifically required;" and,

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 (6) In view of the principles established by the Supreme Court in these landmark
decisions, COAH recently adopted substantive regulations that authorized
municipalities to impose a set aside, without any density bonuses or other
compensatory benefits, pursuant to which municipalities could require residential
developers to construct one (1) affordable residential unit for every eight (8)
market residential units the developer constructed (N.J.A.C. 5:94-4.4(a)); and,

(7) COAH specifically stated that “a municipality may adopt a zoning ordinance
requiring a maximum of one for every eight market-rate residential units be
affordable to low and moderate income households, as long as the zoning has not
allowed an increase in density to accommodate affordable housing.” (36 N.J.R.
5775); and

(8) COAH has also authorized municipalities to require nonresidential developers to

produce affordable housing without any enhancement or compensatory offsetting
benefit based upon a formula that would require the production of one (1)
affordable residential unit for every twenty-five (25) jobs projected to be created
by the non-residential development (N.J.A.C. 5:94-4.4 (a)); and

(9) The Township of Ewing wishes to ensure that as developers build residential and
nonresidential projects, they provide affordable housing consistent with COAH’s
regulations and policies described above, policies soundly rooted in Supreme
Court precedent; and

(10) Implementation of these policies will ensure that as the Township grows with
housing affordable to the middle and upper class, it will also grow with housing
affordable to lower income households and that as nonresidential development
occurs, it will also provide housing affordable for lower income workers. (see
Mount Laurel II at 211).

B. Applicability.

(1) This subsection of the Township of Ewing’s affordable housing regulations sets
forth mechanisms by which developers shall provide for a fair share of affordable
housing based on growth that is associated with development taking place within
the Township.

(2) Residential Development. Except as exempted in subsection C, all residential

development in any zone that results in the construction of new market-rate
dwelling units shall be subject to the “growth share” provisions of this ordinance.
Further, any residential project with fewer than nine (9) units is not otherwise
exempted from its growth share obligation and shall make such payments as equal
to the pro rata cost of producing an affordable housing unit. For example, a
project building two market rate housing units, shall make payment equal to
twenty-five percent (25%) of the cost of producing one (1) affordable housing
unit in the Township.

(3) Non-residential development. Except as exempted in subsection C, all non-

residential development in any zone that results in an increase in gross floor area
of any existing non-residential structure or the construction of a new non-
residential structure shall be subject to the “growth share” provisions of this
ordinance. Further, any non-residential project that generates fewer than twenty-
five (25) jobs is not otherwise exempted from its growth share obligation and
shall make such payments as equal to the pro rata cost of producing an affordable
housing unit. For example, a project producing five (5) jobs shall make payment
equal to the cost of twenty percent (20%) of producing one (1) affordable housing
unit in the Township.

C. Exemptions.

(1) Developments that received preliminary or final approval from the Planning
Board and/or Board of Adjustment, as applicable, prior to the effective date of
this ordinance.
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 (2) 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 Municipal Clerk, together with a certification that
services of the organization are provided at reduced rates to those who establish
an inability to pay existing charges.

(3) Federal, state, county and local governments.

(4) 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. Residential Growth Share Provisions.

(1) Quantification of Affordable Housing Obligation for Residential Developers.

Except as otherwise provided below, in those circumstances where an applicant
seeks to develop land for residential purposes and receives no right to increased
density or other compensatory bonus, said applicant shall produce and develop on
site one (1) residential unit of housing affordable to low and moderate income
households for every eight (8) market rate residential units constructed (11.11
percent). Any residential project with fewer than nine (9) units is not otherwise
exempted from its growth share obligation and shall make such payments as equal
to the pro rata cost of producing an affordable housing unit.

(2) Permissible Manner of Satisfaction of Affordable Housing Obligation of

Residential Developers.

(a) Residential Development. For all residential development, an applicant

shall satisfy its affordable housing production obligation through on-site
housing production in connection with the residential project, which is one
of the mechanisms permitted pursuant to COAH’s regulations.

(b) The other alternative mechanisms permitted under COAH’s regulations

include: (a) the purchase of an existing market-rate home at another
location in the community and its conversion to an affordable price-
restricted home in accordance with COAH’s criteria, regulations and
policies; or (b) participation in gut reconstruction and/or buy-down/write-
down, buy-down/rent-down programs. An applicant shall only be entitled
to satisfy its affordable housing obligation via one or more of the
alternative mechanisms set forth above if the applicant first secures the
written authorization of the Township Planning Board to comply via one
or more of these alternative mechanisms

(c) Before the applicant’s development application for final site plan or
subdivision approval is deemed complete consistent with the Municipal
Land Use Law and the Township of Ewing Land Development
Ordinances, the applicant must secure written permission from the
Township Planning Board as to the exact manner in which alternative
mechanism(s) will be used to achieve the creation of one (1) affordable
residential unit for every eight (8) market rate residential units.

(d) Full and complete satisfaction of compliance with the affordable housing
requirements of the development shall be a specific, automatic, essential
and non-severable condition of all land use approvals. Pursuant to this
condition, the applicant must demonstrate that it has satisfied the Planning
or Zoning Board condition of approval for affordable housing prior to
obtaining the first building permit and compliance with the affordable
housing condition shall be a continuing condition of all Planning or
Zoning Board approvals for development.

E. Non-Residential Growth Share Provisions

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 (1) Quantification of Affordable Housing Obligation for Non-Residential Developers.
Except as otherwise provided below, in those circumstances where an applicant
seeks to develop land for non-residential purposes and receives no right to an
increased Floor Area Ratio (FAR) as defined §15-8, Definitions, or other
compensatory benefit, the developer shall provide one (1) non-age-restricted
affordable residential unit for every twenty five (25) jobs projected to be created
by its 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.”

(2) Permissible Manner of Satisfaction of Affordable Housing Obligation of Non-

residential Developers.

(a) For all Nonresidential Development, the applicant may, at its option, but
subject to the approval of the Township Planning Board, satisfy its
affordable housing production obligation through the various mechanisms
COAH regulations authorize including: (a) on-site housing production in
connection with a residential component of the project in all non-industrial
zones; (b) the purchase of an existing market-rate home at another location
in the community and its conversion to an affordable price-restricted home
in accordance with COAH’s criteria, regulations and policies for each unit
required by the project; and/or (c) participation in gut reconstruction
and/or buy-down/write-down, buy-down/rent-down programs.

(b) All non-residential development in any zone creating fewer than twenty-
five (25) jobs may provide one (1) low-income unit off-site or shall pay
the pro rata cost of producing one (1) low-income unit in the Township.

(c) For developments that result in a number of jobs not evenly divisible by
twenty-five (25) and where the developer elects to satisfy its obligation
through the construction of affordable housing, the developer may satisfy
its obligation as to the remainder by constructing an additional affordable
unit on or off site or by making payment in an amount equal to the pro rata
share represented by the remainder for the cost of producing one (1)
affordable unit in the Township.

(d) Full and complete satisfaction of compliance with the affordable housing
requirements of the development shall be a specific, automatic, essential,
and non-severable condition of all approvals. Pursuant to this condition,
the applicant must demonstrate that it has satisfied the Planning or Zoning
Board’s affordable housing condition of approval prior to obtaining the
first building permit and compliance with the affordable housing condition
shall be a continuing condition of all approvals for development.

F. Mixed Use Growth Share Provisions

(1) For all projects which include a combination of both residential and non-
residential development, the affordable housing obligation created by the
residential portion of the project is set forth in Section D(1) above. The
permissible manner of satisfaction of the affordable housing obligation for the
residential component is set forth in Section D(2) above.

(2) The affordable housing obligation created by the non-residential portion of the
project is set forth in Section E(1) above. The permissible manner of satisfaction
of the affordable housing obligation for the residential component is set forth in
Section E(2) above.

G. General Provisions for Constructing Affordable Units

(1) The affordable unit(s) to be produced pursuant to Paragraphs A, B, C, D and E

above shall be available to a low income individual or household should only one
affordable unit be required. Thereafter, each of the affordable units shall be
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 divided evenly between low and moderate income individuals and households
except in the event of the applicable formulas result in an odd number of
affordable units; in which event the unit shall be a low income residential unit.

(2) Affordable housing units being constructed on-site or off-site shall meet the
requirements of the Township of Ewing’s affordable housing ordinance, and shall
be in conformance with COAH’s third round rules at N.J.A.C. 5:94-1 et seq. and
the Uniform Housing Affordability Controls at N.J.A.C. 5:80-26.1 et seq.,
including, but not limited to, requirements regarding phasing schedule, controls
on affordability, low/moderate income split, heating source, maximum rent and/or
sales prices, affordability average, bedroom distribution, and affirmative
marketing.

(3) It shall be the applicant’s responsibility, at its sole cost and expense, to arrange for
a COAH and Township approved qualification service to ensure full COAH
compliance and to file such certifications, reports and/or monitoring forms as may
be required by COAH to verify COAH compliance of each affordable unit.

(4) To the greatest extent possible, affordable housing units being provided within
inclusionary developments shall be disbursed throughout inclusionary
developments and shall be located within buildings designed to be architecturally
indistinguishable from the market-rate units otherwise being constructed within
the development. To that end, the scale, massing, roof pitch and architectural
detailing (such as the selection of exterior materials, doors, windows, etc.) of the
buildings containing the affordable housing units shall be similar to and
compatible with that of the market-rate units.

(5) Single-family attached buildings in the form of semi-detached (side-by-side) units

or duplex (over and under) units buildings shall be deemed to be permitted uses in
the underlying zone when created for the purpose of meeting the growth share
obligation on-site and shall conform to the bulk standards set forth in the §15-17,
RM – Residential Multifamily District and §15-17A, RME – Residential
Multifamily with Elevators District.

H. Permissible Manner of Satisfaction of Affordable Housing Obligation of Mixed-Use

Developers. For all projects which include a combination of both residential and non-
residential development, the affordable housing obligation created by the residential
portion of the project is set forth in Section D above. The permissible manner of
satisfaction of the affordable housing obligation for the residential component is set forth
in Section D above. The affordable housing obligation created by the non-residential
portion of the project is set forth in Section E above. The permissible manner of
satisfaction of the affordable housing obligation for the residential component is set forth
in Section E above.

I. Compliance With COAH Rules. The affordable unit(s) to be produced pursuant to

Paragraphs C, D E, F and G above shall be available to a low income individual or
household should only one (1) affordable unit be required. Thereafter, each of the
affordable units shall be divided evenly between low and moderate income individuals
and households except in the event of the applicable formulas result in an odd number of
affordable units; in which event the unit shall be a low income residential unit. All
affordable units shall strictly comply with COAH’s regulations and policies including,
but not limited to, pricing, phasing, bedroom distribution, controls on affordability, range
of affordability, affirmative marketing, and income qualification. It shall be the
applicant’s responsibility, at its sole cost and expense, to arrange for a COAH and
Township approved qualification service to ensure full COAH compliance and to file
such certifications, reports and/or monitoring forms as may be required by COAH to
verify COAH compliance of each affordable unit.

J. Right To Greater Set-Aside If Compensatory Benefit.

(1) As to residential developers, nothing herein shall affect the Township’s ability to
generate more affordable housing than the one (1) for eight (8) standard set forth
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 above in the event that the developer secures a density bonus or other
compensatory benefit through zoning or through a use variance.

(2) As to nonresidential developers, nothing herein shall affect the Township’s ability
to generate more affordable housing than the one (1) affordable residential unit
for every twenty-five (25) jobs standard set forth above in the event that the
developer secures an increased floor area ratio (FAR) or other compensatory
benefit through zoning or through a use variance.

(3) Any requirement for residential or nonresidential developers in excess of the

ratios referenced in Section G(1) and (2) above shall be based upon standards the
Township shall hereafter enact and shall secure COAH’s approval of same.

Section 2. All Ordinances and parts of Ordinances inconsistent herewith are hereby repealed.
If any section, subparagraph, sentence, clause, or phrase of this ordinance shall be
held to be invalid, such decision shall not invalidate any remaining portion of this
Ordinance.

Section 3. This Ordinance shall take effect immediately upon passage, publication according
to law and filing with the Mercer County Planning Board in accordance with
N.J.S.A. 40:55D-16.

STATEMENT

This Ordinance amends the Revised General Municipal Ordinances of the Township of Ewing,
Chapter 15, Land Development, to facilitate the provision of affordable housing in connection
with residential and non-residential development in compliance with the New Jersey Council on
Affordable Housing Round 3 Rules approved December 20, 2004. This ordinance supplements
and amends the Affordable Housing Fees for the construction of new housing units and new non-
residential development.

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