Bill Text: NJ A3940 | 2014-2015 | Regular Session | Introduced
Bill Title: Authorizes municipalities to require subdivision approval prior to or as condition of creation or conveyance of certain condominiums or units thereof.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2014-12-04 - Introduced, Referred to Assembly Housing and Community Development Committee [A3940 Detail]
Download: New_Jersey-2014-A3940-Introduced.html
Sponsored by:
Assemblyman GREGORY P. MCGUCKIN
District 10 (Ocean)
SYNOPSIS
Authorizes municipalities to require subdivision approval prior to or as condition of creation or conveyance of certain condominiums or units thereof.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning subdivision approval and condominiums and amending P.L.1975, c.291 and P.L.1969, c.257.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 29.2 of P.L.1975, c.291 (C.40:55D-40) is amended to read as follows:
29.2. An ordinance requiring subdivision approval by the planning board pursuant to this article may also include:
a. Provisions for minor subdivision approval pursuant to section 35 of this act, P.L.1975, c.291 (C.40:55D-47); [and]
b. Standards permitting lot-size averaging and encouraging and promoting flexibility, economy and environmental soundness in layout and design in accordance with which the planning board may approve the varying, within a conventional subdivision, of lot areas and dimensions, and yards and setbacks otherwise required by municipal development regulations; provided that the authorized density on the parcel or set of contiguous parcels is not exceeded; provided that such standards shall be appropriate to the type of development permitted. An ordinance authorizing the planning board to approve subdivisions with varying lot areas may set forth limitations, or impose no limitation, upon the extent of variation in lot areas; and
c. Provisions requiring subdivision approval prior to, or as a condition of, one or more of the following purposes:
(1) the creation of a condominium of two or more units on a single lot zoned for single family residences;
(2) the conveyance or lease of a condominium, or of one or more condominium units, on a single lot zoned for single family residences which lot contains two or more condominium units.
(cf: P.L.2013, c.106, s.10)
2. Section 43 of P.L.1975, c.291 (C.40:55D-55) is amended to read as follows:
43. If, before final subdivision approval has been granted, any person transfers or sells or agrees to transfer or sell, except pursuant to an agreement expressly conditioned on final subdivision approval, as owner or agent, any land or condominium unit which forms a part of a subdivision for which municipal approval is required by ordinance pursuant to this act, P.L.1975, c.291 (C.40:55D-1 et seq.), such person shall be subject to a penalty not to exceed $1,000.00, and each lot disposition so made may be deemed a separate violation.
In addition to the foregoing,
the municipality may institute and
maintain a civil action:
a. For injunctive relief; and
b. To set aside and invalidate any conveyance made pursuant to such a contract of sale if a certificate of compliance has not been issued in accordance with section 44 of this act, P.L.1975, c.291 (C.40:55D-56), but only if the municipality (1) has a planning board and (2) has adopted by ordinance standards and procedures in accordance with section 29 of this act, P.L.1975, c.291 (C.40:55D-38).
In any such action, the transferee, purchaser or grantee shall be entitled to a lien upon the portion of the land, from which the subdivision was made that remains in the possession of the developer or his assigns or successors, to secure the return of any deposits made or purchase price paid, and also, a reasonable search fee, survey expense and title closing expense, if any. Any such action must be brought within 2 years after the date of the recording of the instrument of transfer, sale or conveyance of said land or within 6 years, if unrecorded.
(cf: P.L.1975, c.291, s.43)
3. Section 8 of P.L.1969, c.257 (C.46:8B-8) is amended to read as follows:
8. a. [A] Except as otherwise provided in subsection b. of this section, a condominium may be created and established by recording in the office of the county recording officer of the county wherein the land is located a master deed executed and acknowledged by all owners or the lessees setting forth the matters required by section 9 of P.L.1969, c.257 (C.46:8B-9) and section 3 of P.L.1960, c.141 (C.46:23-9.11). The provisions of the "Condominium Act," P.L.1969, c.257 (C.46:8B-1 et seq.) shall apply solely to real property of interests therein which have been subjected to the terms of P.L.1969, c.257 as provided in this section.
b. If a municipal ordinance requires the grant of subdivision approval of a lot zoned for single-family residential purposes prior to, or as a condition of, the creation of a condominium of two or more units on the lot, or the conveyance or lease of a condominium or condominium unit on the lot, a developer shall not create, convey, or lease a condominium or unit thereof on the lot unless a certificate of compliance has been issued pursuant to section 44 of P.L.1975, c.291 (C.40:55D-56) or the master deed, unit deed, and other applicable documents of conveyance or lease of the condominium or unit thereof are expressly conditioned on final subdivision approval. In this instance, the approved major subdivision plat or minor subdivision plat or deed shall be recorded at the time of recording the master deed pursuant to subsection a. of this section, or, if the master deed is recorded prior to, and conditioned upon, final subdivision approval, the approved major subdivision plat or minor subdivision plat or deed may be recorded any time prior to expiration of approval under P.L.1975, c.291 (C.40:55D-1 et seq.).
c. Within seven days after recording a master deed or amendment thereto, the county recording officer shall notify the planning board and the tax assessor of the municipality in which the land is situated of the recording in writing, identifying such instrument by its title, date of filing, and official number.
(cf: P.L.1997, c.211, s.3)
4. Section 29 of P.L.1969, c. 257 (C.46:8B-29) is amended to read as follows:
29. All laws, ordinances and regulations concerning planning, subdivision or zoning, shall be construed and applied with reference to the nature and use of the condominium without regard to the form of ownership. No law, ordinance or regulation shall establish any requirement concerning the use, location, placement or construction of buildings or other improvements which are, or may thereafter be subjected to this act unless such requirement shall be equally applicable to all buildings and improvements which are, or may thereafter be subjected to this act unless such requirement shall be equally applicable to all buildings and improvements of the same kind not then or thereafter to be subjected to this act. [No] Except as provided in subsection b. of section 8 of P.L.1969, c.257 (C.46:8B-8), and pursuant to subsection c. of section 29.2 of P.L.1975, c.291 (C.40:55D-40), no subdivision or planning approval shall be required as a condition precedent to the recording of a master deed or the sale of any unit unless such approval shall also be required for the use or development of the lands described in the master deed in the same manner as therein set forth had such lands not been submitted to this act.
(cf: P.L.1969, c.257, s.29)
5. This act shall take effect immediately.
STATEMENT
This bill would allow municipalities to prohibit a property owner from using the "Condominium Act," P.L.1969, c.257 (C.46:8B-1 et seq.) as a way of conveying second residences on single family lots in order to circumvent local zoning requirements. The bill would allow a property owner to convey a second residence on a lot if granted subdivision approval of the lot pursuant to the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq., "MLUL"). Ordinarily, the owner of a single family lot containing two or more residences could not convey a second residence on the lot without subdividing the lot. This may also require the grant of variances from the municipal zoning ordinance, depending upon various factors such as the size of the lot, the location of the structures, and the bulk and dimensional requirements of the ordinance.
The "MLUL" allows the owners of "nonconforming" lots, uses and structures, those that were authorized at the time they were developed but which do not conform with current zoning requirements, to continue to exist as long as they do not expand. However, nonconforming uses and structures are disfavored and the goal of the law is that nonconforming uses and structures will ultimately conform.
The governing bodies of several shore municipalities have adopted resolutions urging the Legislature to prohibit property owners from circumventing zoning requirements be creating single lot condominiums and conveying second homes as condominium units. The resolutions explain that it is commonplace in shore communities for two or more residential structures to exist on lots zoned for single family homes, oftentimes, because garages were converted into summer rental cottages at some time prior to the adoption of any ordinance which would have prohibited that use. The absence of zoning regulations and the increasing demand for summer housing encouraged this pattern of residential development in the shore area.
The New Jersey Supreme Court, in Urban v. Planning Bd., 124 N.J. 651 (1991), broke from prior case law, which had been decided under the predecessor to the "MLUL," by holding that the owners of preexisting nonconforming lots containing two or more residential structures are not entitled to subdivision approval as a matter of right. The court upheld the power of planning boards to exercise discretion to "balance the public interest in upgraded zoning with the rights of the owner of the preexisting nonconforming property." The court reasoned that unless planning boards had the power to require property owners of previously developed land to secure subdivision approvals and variances from current zoning requirements, the ability of a municipality to achieve its vision for the future development of the municipality it has planned for would be significantly undermined.
Property owners responded to this development by enlisting the "Condominium Act," which enabled them to create condominiums on single family lots and establish each residential structure on the lot as a separate condominium unit. These "de facto" subdivisions enabled property owners to sell the second homes on their lots without having to seek subdivision approval from the planning board. Experience has shown that this practice has significantly impeded the ability of municipalities to implement the goals of their master plans, limited their ability to undo the mistakes of past development patterns, and resulted in unanticipated problems for unsophisticated purchasers of these condominium units.
Purchasers of these units often do not realize that they have purchased preexisting nonconforming uses and structures, and as such are not able to expand or improve their dwellings, until informed of this limitation by a zoning officer or planning board. As unit owners of a condominium, their ability to advocate for the repair or reconstruction of their unit may be limited or preempted by the wishes of the association of unit owners.
This bill will close this loophole by enabling municipalities experiencing this problem to require property owners to secure subdivision approval of a lot prior to creating or conveying a condominium or unit thereof.
