[Amended 3-22-2005 by Ord. No. O-05-8; 12-27-2005 by Ord. No. O-05-48; 2-28-2006 by Ord. No. O-06-4; 5-23-2006 by Ord. No. O-06-24; 2-27-2007 by Ord. No. O-07-1; 12-16-2008 by Ord. No. O-08-34]

A. Purpose.

(1) In Holmdel Builder's Association v. Holmdel Township, 121 N.J. 550 (1990), the New Jersey Supreme Court determined that mandatory development fees are authorized by the Fair Housing Act of 1985 (the Act), N.J.S.A. 52:27D-301 et seq., and the State Constitution, subject to the Council on Affordable Housing's (COAH's) adoption of rules.

(2) Pursuant to P.L. 2008, c. 46, Section 8 (N.J.S.A. 52:27D-329.2) and the Statewide Nonresidential Development Fee Act (N.J.S.A. 40:55D-8.1 through 8.7), COAH is authorized to adopt and promulgate regulations necessary for the establishment, implementation, review, monitoring and enforcement of municipal affordable housing trust funds and corresponding spending plans. Municipalities that are under the jurisdiction of the Council or court of competent jurisdiction and have a COAH-approved spending plan may retain fees collected from nonresidential development.

(3) This section establishes standards for the collection, maintenance, and expenditure of development fees pursuant to COAH's regulations and in accordance P.L. 2008, c. 46, Sections 8 and 32-38. Fees collected pursuant to this section shall be used for the sole purpose of providing low- and moderate-income housing. This section shall be interpreted within the framework of COAH's rules on development fees, codified at N.J.A.C. 5:97-8.

B. Basic requirements.

(1) This section shall not be effective until approved by COAH pursuant to N.J.A.C. 5:96-5.1.

(2) Freehold Township shall not spend development fees until COAH has approved a plan for spending such fees in conformance with N.J.A.C. 5:97-8.10 and N.J.A.C. 5:96-5.3.

C. Definitions. The following terms, as used in this section, shall have the following meanings:

AFFORDABLE HOUSING DEVELOPMENT A development included in the Housing Element and Fair Share Plan, and includes but is not limited to an inclusionary development, a municipal construction project or a 100% affordable development.

COAH OR THE COUNCIL The New Jersey Council on Affordable Housing established under the Act, which has primary jurisdiction for the administration of housing obligations in accordance with sound regional planning consideration in the state.

DEVELOPER The legal or beneficial owner or owners of a lot or of any land proposed to be included in a proposed development, including the holder of an option or contract to purchase, or other person having an enforceable proprietary interest in such land.

DEVELOPMENT FEE Money paid by a developer for the improvement of property as permitted in N.J.A.C. 5:97-8.3.

EQUALIZED ASSESSED VALUE The assessed value of a property divided by the current average ratio of assessed to true value for the municipality in which the property is situated, as determined in accordance with Sections 1, 5, and 6 of P.L. 1973, c. 123 (N.J.S.A.54:1-35a through N.J.S.A.54:1-35c).

GREEN BUILDING STRATEGIES Those strategies that minimize the impact of development on the environment and enhance the health, safety and well-being of residents by producing durable, low-maintenance, resource-efficient housing while making optimum use of existing infrastructure and community services.

D. Residential development fees.

(1) Imposed fees.

(a) Within applicable residential zoning districts of the Township of Freehold, residential developers, except for developers of the types of development specifically exempted below, shall pay a fee of 1 1/2% of the equalized assessed value for residential development, provided no increased density is permitted.

(b) When an increase in residential density pursuant to N.J.S.A. 40:55D-70d(5) (known as a "d" variance) has been permitted, developers may be required to pay a development fee of 6% of the equalized assessed value for each additional unit that may be realized. However, if the zoning on a site has changed during the two-year period preceding the filing of such a variance application, the base density for the purposes of calculating the bonus development fee shall be the highest density permitted by right during the two-year period preceding the filing of the variance application.

Example: If an approval allows four units to be constructed on a site that was zoned for two units, the fees could equal 1 1/2% of the equalized assessed value on the first two units; and the specified higher percentage up to 6% of the equalized assessed value for the two additional units, provided zoning on the site has not changed during the two-year period preceding the filing of such a variance application.

(2) Eligible exactions, ineligible exactions and exemptions for residential development.

(a) Affordable housing developments and developments where the developer has made a payment in lieu of on-site construction of affordable units shall be exempt from development fees.

(b) Developments that have received preliminary or final site plan approval prior to the adoption of a municipal development fee ordinance shall be exempt from development fees, unless the developer seeks a substantial change in the approval. Where a site plan approval does not apply, a zoning and/or building permit shall be synonymous with preliminary or final site plan approval for this purpose. The fee percentage shall be vested on the date that the building permit is issued.

E. Nonresidential development fees.

(1) Imposed fees.

(a) Within all zoning districts, nonresidential developers, except for developers of the types of development specifically exempted, shall pay a fee equal to 2 1/2% of the equalized assessed value of the land and improvements, for all new nonresidential construction on an unimproved lot or lots.

(b) Nonresidential developers, except for developers of the types of development specifically exempted, shall also pay a fee equal to 2 1/2% of the increase in equalized assessed value resulting from any additions to existing structures to be used for nonresidential purposes.

(c) Development fees shall be imposed and collected when an existing structure is demolished and replaced. The development fee of 2 1/2% shall be calculated on the difference between the equalized assessed value of the preexisting land and improvement and the equalized assessed value of the newly improved structure, i.e., land and improvement, at the time final certificate of occupancy is issued. If the calculation required under this section results in a negative number, the nonresidential development fee shall be zero.

(2) Eligible exactions, ineligible exactions and exemptions for nonresidential development:

(a) The nonresidential portion of a mixed-use inclusionary or market-rate development shall be subject to the 2 1/2% development fee, unless otherwise exempted below.

(b) The 2 1/2% fee shall not apply to an increase in equalized assessed value resulting from alterations, change in use within the existing footprint, reconstruction, renovations and repairs.

(c) Nonresidential developments shall be exempt from the payment of nonresidential development fees in accordance with the exemptions required pursuant to P.L. 2008, c. 46, as specified in the Form N-RDF, State of New Jersey Nonresidential Development Certification/Exemption Form. Any exemption claimed by a developer shall be substantiated by that developer.

(d) A developer of a nonresidential development exempted from the nonresidential development fee pursuant to P.L. 2008, c. 46 shall be subject to it at such time the basis for the exemption no longer applies and shall make the payment of the nonresidential development fee, in that event, within three years after that event or after the issuance of the final certificate of occupancy of the nonresidential development, whichever is later.

(e) If a property which was exempted from the collection of a nonresidential development fee thereafter ceases to be exempt from property taxation, the owner of the property shall remit the fees required pursuant to this section within 45 days of the termination of the property tax exemption. Unpaid nonresidential development fees under these circumstances may be enforceable by Freehold Township as a lien against the real property of the owner.

F. Collection procedures.

(1) Upon the granting of a preliminary, final or other applicable approval for a development, the applicable approving authority shall direct its staff to notify the construction official responsible for the issuance of a building permit.

(2) For nonresidential developments only, the developer shall also be provided with a copy of Form N-RDF, State of New Jersey Nonresidential Development Certification/Exemption, to be completed as per the instructions provided. The developer of a nonresidential development shall complete Form N-RDF as per the instructions provided. The construction official shall verify the information submitted by the nonresidential developer as per the instructions provided in Form N-RDF. The tax assessor shall verify exemptions and prepare estimated and final assessments as per the instructions provided in Form N-RDF.

(3) The construction official responsible for the issuance of a building permit shall notify the local tax assessor of the issuance of the first building permit for a development which is subject to a development fee.

(4) Within 90 days of receipt of that notice, the municipal tax assessor, based on the plans filed, shall provide an estimate of the equalized assessed value of the development.

(5) The construction official responsible for the issuance of a final certificate of occupancy notifies the local assessor of any and all requests for the scheduling of a final inspection on property which is subject to a development fee.

(6) Within 10 business days of a request for the scheduling of a final inspection, the municipal assessor shall confirm or modify the previously estimated equalized assessed value of the improvements of the development, calculate the development fee, and thereafter notify the developer of the amount of the fee.

(7) Should Freehold Township fail to determine or notify the developer of the amount of the development fee within 10 business days of the request for final inspection, the developer may estimate the amount due and pay that estimated amount consistent with the dispute process set forth in Subsection b of Section 37 of P.L. 2008, c. 46 (N.J.S.A. 40:55D-8.6).

(8) Fifty percent of the development fee shall be collected at the time of issuance of the building permit. The remaining portion shall be collected at the issuance of the certificate of occupancy. The developer shall be responsible for paying the difference between the fee calculated at the building permit and that determined at issuance of the certificate of occupancy.

(9) Appeal of development fees.

(a) A developer may challenge residential development fees imposed by filing a challenge with the County Board of Taxation. Pending a review and determination by the Board, collected fees shall be placed in an interest-bearing escrow account by Freehold Township. Appeals from a determination of the Board may be made to the Tax Court in accordance with the provisions of the State Tax Uniform Procedure Law, N.J.S.A. 54:48-1 et seq., within 90 days after the date of such determination. Interest earned on amounts escrowed shall be credited to the prevailing party.

(b) A developer may challenge nonresidential development fees imposed by filing a challenge with the Director of the Division of Taxation. Pending a review and determination by the Director, which shall be made within 45 days of receipt of the challenge, collected fees shall be placed in an interest-bearing escrow account by Freehold Township. Appeals from a determination of the Director may be made to the Tax Court in accordance with the provisions of the State Tax Uniform Procedure Law, N.J.S.A. 54:48-1 et seq., within 90 days after the date of such determination. Interest earned on amounts escrowed shall be credited to the prevailing party.

G. Affordable Housing Trust Fund.

(1) There is hereby created a separate, interest-bearing housing trust fund to be maintained by the chief financial officer for the purpose of depositing development fees collected from residential and nonresidential developers and proceeds from the sale of units with extinguished controls.

(2) The following additional funds shall be deposited in the Affordable Housing Trust Fund and shall at all times be identifiable by source and amount:

(a) Payments in lieu of on-site construction of affordable units;

(b) Developer-contributed funds to make 10% of the adaptable entrances in a townhouse or other multistory attached development accessible;

(c) Rental income from municipally operated units;

(d) Repayments from affordable housing program loans;

(e) Recapture funds;

(f) Proceeds from the sale of affordable units; and

(g) Any other funds collected in connection with Freehold Township's Affordable Housing Program.

(3) Within seven days from the opening of the trust fund account, Freehold Township shall provide COAH with written authorization, in the form of a three-party escrow agreement between the municipality, the bank, and COAH, to permit COAH to direct the disbursement of the funds as provided for in N.J.A.C. 5:97-8.13(b).

(4) All interest accrued in the housing trust fund shall only be used on eligible affordable housing activities approved by COAH.

H. Use of funds.

(1) The expenditure of all funds shall conform to a spending plan approved by COAH. Funds deposited in the housing trust fund may be used for any activity approved by COAH to address the Freehold Township's fair share obligation and may be set up as a grant or revolving loan program. Such activities include but are not limited to preservation or purchase of housing for the purpose of maintaining or implementing affordability controls, rehabilitation, new construction of affordable housing units and related costs, accessory apartments, market to affordable, or regional housing partnership programs, conversion of existing nonresidential buildings to create new affordable units, green building strategies designed to be cost saving and in accordance with accepted national or state standards, purchase of land for affordable housing, improvement of land to be used for affordable housing, extensions or improvements of roads and infrastructure to affordable housing sites, financial assistance designed to increase affordability, administration necessary for implementation of the Housing Element and Fair Share Plan, or any other activity as permitted pursuant to N.J.A.C. 5:97-8.7 through 8.9 and specified in the approved spending plan.

(2) Funds shall not be expended to reimburse Freehold Township for past housing activities.

(3) At least 30% of all development fees collected and interest earned shall be used to provide affordability assistance to low- and moderate-income households in affordable units included in the Municipal Fair Share Plan. One-third of the affordability assistance portion of development fees collected shall be used to provide affordability assistance to those households earning 30% or less of median income by region.

(a) Affordability assistance programs may include downpayment assistance, security deposit assistance, low-interest loans, rental assistance, assistance with homeowners' association or condominium fees and special assessments, and assistance with emergency repairs.

(b) Affordability assistance to households earning 30% or less of median income may include buying down the cost of low- or moderate-income units in the Municipal Fair Share Plan to make them affordable to households earning 30% or less of median income. The use of development fees in this manner shall entitle Freehold Township to bonus credits pursuant to N.J.A.C. 5:97-3.7.

(c) Payments in lieu of constructing affordable units on site and funds from the sale of units with extinguished controls shall be exempt from the affordability assistance requirement.

(4) Freehold Township may contract with a private or public entity to administer any part of its Housing Element and Fair Share Plan, including the requirement for affordability assistance, in accordance with N.J.A.C. 5:96-18.

(5) No more than 20% of all revenues collected from development fees may be expended on administration, including but not limited to salaries and benefits for municipal employees or consultant fees necessary to develop or implement a new construction program, a Housing Element and Fair Share Plan, and/or an affirmative marketing program. In the case of a rehabilitation program, no more than 20% of the revenues collected from development fees shall be expended for such administrative expenses. 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. Legal or other fees related to litigation opposing affordable housing sites or objecting to the Council's regulations and/or action are not eligible uses of the Affordable Housing Trust Fund.

I. Monitoring.

(1) Freehold Township shall complete and return to COAH all monitoring forms included in monitoring requirements related to the collection of development fees from residential and nonresidential developers, payments in lieu of constructing affordable units on site, funds from the sale of units with extinguished controls, barrier-free escrow funds, rental income, repayments from affordable housing program loans, and any other funds collected in connection with Freehold Township's housing program, as well as to the expenditure of revenues and implementation of the plan certified by COAH. All monitoring reports shall be completed on forms designed by COAH.

J. Ongoing collection of fees.

(1) The ability for Freehold Township to impose, collect and expend development fees shall expire with its substantive certification unless Freehold Township has filed an adopted Housing Element and Fair Share Plan with COAH, has petitioned for substantive certification, and has received COAH's approval of its development fee ordinance. If Freehold Township fails to renew its ability to impose and collect development fees prior to the expiration of substantive certification, it may be subject to forfeiture of any or all funds remaining within its municipal trust fund. Any funds so forfeited shall be deposited into the New Jersey Affordable Housing Trust Fund established pursuant to Section 20 of P.L. 1985, c. 222 (N.J.S.A. 52:27D-320). Freehold Township shall not impose a residential development fee on a development that receives preliminary or final site plan approval after the expiration of its substantive certification or judgment of compliance, nor shall Freehold Township retroactively impose a development fee on such a development. Freehold Township shall not expend development fees after the expiration of its substantive certification or judgment of compliance.

[Added 5-23-2006 by Ord. No. O-06-23]

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

(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;

(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)];

(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);

(4) In Mount Laurel II, the Supreme Court also stated, "Zoning 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);

(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;"

(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 affordable residential unit for every eight market residential units the developer constructed [(N.J.A.C. 5:94-4.4 (a)];

(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);

(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 affordable residential unit for every 25 jobs projected to be created by the nonresidential development [(N.J.A.C. 5:94-4.4 (a)];

(9) The Township of Freehold 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 affordable housing regulations of Freehold Township 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 Freehold 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 section.

(3) Nonresidential development. Except as exempted in subsection C, all nonresidential development in any zone that results in an increase in gross floor area of any existing nonresidential structure or the construction of a new nonresidential structure shall be subject to the growth share provisions of this section.

C. Exemptions.

(1) Developments that received preliminary or final approval from the Planning Board prior to the effective date of this section. [Amended 12-22-2015 by Ord. No. O-15-26]

(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.

(5) Residential projects of fewer than nine units shall be exempt from this section and shall be subject to the Township's affordable housing development fee requirements in § 190-224 in its current form or any future form.

(6) Nonresidential projects projected to generate fewer than 25 jobs based upon the standards set forth in 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" shall be exempt from this section and shall be subject to the Township's affordable housing development fee requirements in § 190-224 in its current form or any future form.

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 residential unit of housing affordable to low- and moderate-income households for every eight market rate residential units constructed (11.11%). Nothing herein shall relieve applicants seeking to develop projects of eight or fewer units from the requirements of the Township's affordable housing development fee requirements in § 190-224 in its current form or any future form. If the project is more than nine units and is not evenly divisible by nine, the applicant shall not be required to reserve any unit(s) for affordable housing and also pay a fee.

(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 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; participation in reconstruction and/or buy-down/write-down, buy-down/rent-down programs; and/or contributing to the Housing Trust Fund at a rate of 1% of the equalized assessed value of the new construction of residential development. 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 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 Freehold Land Use Ordinances, the applicant must secure written permission from the Township of Freehold as to the exact manner in which alternative mechanism(s) will be used to achieve the creation of one affordable residential unit for every eight 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 nonseverable 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. Nonresidential growth share provisions.

(1) Quantification of affordable housing obligation for nonresidential developers. Except as otherwise provided below, in those circumstances where an applicant seeks to develop land for nonresidential purposes and receives no right to an increased floor area ratio (FAR) as defined § 190-3, Definitions, or other compensatory benefit, the developer shall provide one non-age-restricted affordable residential unit for every 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 nonresidential developers.

(a) For all nonresidential development, the applicant may, at its exclusive option, satisfy its affordable housing production obligation through the various mechanisms COAH regulations authorize, including on-site housing production in connection with a residential component of the project in all nonindustrial zones; 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; participation in reconstruction and/or buy-down/write-down, buy-down/rent-down programs; and/or contributing to the Housing Trust Fund at a rate of 2% of equalized assessed value of the new construction for commercial development.

(b) All nonresidential development in any zone creating fewer than 25 jobs may provide one low-income unit offsite or may make a payment to the Township's Mount Laurel Trust Fund at a rate of 2% of the equalized assessed value for the project.

(c) For developments that result in a number of jobs not evenly divisible by 25 and where the developer elects to satisfy its obligation through the construction of affordable housing, the developer may construct the additional affordable unit on or off site; or, alternatively, the developer may pay a fee of 2% of equalized assessed value for the portion of the project which is not addressed through the construction of affordable housing.

(d) Full and complete satisfaction of compliance with the affordable housing requirements of the development shall be a specific, automatic, essential and nonseverable 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 nonresidential development, the affordable housing obligation created by the residential portion of the project is set forth in Subsection D(1) above. The permissible manner of satisfaction of the affordable housing obligation for the residential component is set forth in Subsection D(2) above.

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

G. General provisions for constructing affordable units.

(1) The affordable unit(s) to be produced pursuant to Subsections 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 divided evenly between low- and moderate-income individuals and households except in the event that 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 Freehold'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 semidetached (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 § 190-142, ML-8 and ML-7 Moderate- and Low-Income Housing Zones.

H. Permissible manner of satisfaction of affordable housing obligation of mixed-use developers. For all projects which include a combination of both residential and nonresidential development, the affordable housing obligation created by the residential portion of the project is set forth in Subsection D above. The permissible manner of satisfaction of the affordable housing obligation for the residential component is set forth in Subsection D above. The affordable housing obligation created by the nonresidential portion of the project is set forth in Subsection E above. The permissible manner of satisfaction of the affordable housing obligation for the residential component is set forth in Subsection E above.

I. Compliance with COAH rules. The affordable unit(s) to be produced pursuant to Subsections C, D E, F and G 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 divided evenly between low- and moderate-income individuals and households except in the event that 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 for eight standard set forth 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 affordable residential unit for every 25 job 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 Subsection G(1) and (2) above shall be based upon standards the Township shall hereafter enact and shall secure COAH's approval of same.