ASSEMBLY, No. 3443

STATE OF NEW JERSEY

213th LEGISLATURE

 

INTRODUCED NOVEMBER 13, 2008

 


 

Sponsored by:

Assemblyman HERB CONAWAY, JR.

District 7 (Burlington and Camden)

 

 

 

 

SYNOPSIS

     Authorizes set-asides, and fees in-lieu thereof, for open space and recreation purposes as conditions to approvals under the MLUL.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act authorizing cluster development, set-asides for open space and recreation purposes, the option to negotiate fees in-lieu of set-asides, and amending and supplementing P.L.1975, c.291.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.  Section 3 of P.L.1975, c.291 (C.40:55D-3) is amended to read as follows:

     3.    For the purposes of this act, unless the context clearly indicates a different meaning:

     The term "shall" indicates a mandatory requirement, and the term "may" indicates a permissive action.

     "Administrative officer" means the clerk of the municipality, unless a different municipal official or officials are designated by ordinance or statute.

     "Agricultural land" means "farmland" as defined pursuant to section 3 of P.L.1999, c.152 (C.13:8C-3).

     "Applicant" means a developer submitting an application for development.

     "Application for development" means the application form and all accompanying documents required by ordinance for approval of a subdivision plat, site plan, planned development, conditional use, zoning variance or direction of the issuance of a permit pursuant to section 25 or section 27 of P.L.1975, c.291 (C.40:55D-34 or C.40:55D-36).

     "Approving authority" means the planning board of the municipality, unless a different agency is designated by ordinance when acting pursuant to the authority of P.L.1975, c.291 (C.40:55D-1 et seq.).

     "Board of adjustment" means the board established pursuant to section 56 of P.L.1975, c.291 (C.40:55D-69).

     "Building" means a combination of materials to form a construction adapted to permanent, temporary, or continuous occupancy and having a roof.

     "Cable television company" means a cable television company as defined pursuant to section 3 of P.L.1972, c.186 (C.48:5A-3).

     "Capital improvement" means a governmental acquisition of real property or major construction project.

     "Circulation" means systems, structures and physical improvements for the movement of people, goods, water, air, sewage or power by such means as streets, highways, railways, waterways, towers, airways, pipes and conduits, and the handling of people and goods by such means as terminals, stations, warehouses, and other storage buildings or transshipment points.

     “Cluster development” means a development technique based on the residential density or development intensity for the tract which allows the lot sizes for dwellings to be reduced or floor area ratios to be increased so that individual segments of the tract have higher densities or intensities, provided that other portions of the tract are dedicated for common open space, public open space, or both, so that the gross density or intensity limitation of the entire tract is not exceeded.

     "Common open space" means an open space area within or related to a site designated as a development, and designed and intended for the use or enjoyment of residents and owners of the development. Common open space may contain such complementary structures and improvements as are necessary and appropriate for the use or enjoyment of residents and owners of the development.

     "Conditional use" means a use permitted in a particular zoning district only upon a showing that such use in a specified location will comply with the conditions and standards for the location or operation of such use as contained in the zoning ordinance, and upon the issuance of an authorization therefor by the planning board.

     "Conventional" means development other than planned development.

     "County agriculture development board" or "CADB" means a county agriculture development board established by a county pursuant to the provisions of section 7 of P.L.1983, c.32 (C.4:1C-14).

     "County master plan" means a composite of the master plan for the physical development of the county in which the municipality is located, with the accompanying maps, plats, charts and descriptive and explanatory matter adopted by the county planning board pursuant to R.S.40:27-2 and R.S.40:27-4.

     "County planning board" means the county planning board, as defined in section 1 of P.L.1968, c.285 (C.40:27-6.1), of the county in which the land or development is located.

(cf: P.L.2004, c.2, s.32)

 

     2.  (New section)  a.  The governing body, by ordinance, may adopt regulations requiring a developer, as a condition for approval of a subdivision or site plan, to set aside a minimum percentage of the total area of the subdivision or site plan for open space purposes, for recreational purposes, and for the development of recreational opportunities attributable to the construction or improvements within the subdivision or development.  The ordinance shall allow a developer to negotiate a fee with the planning board, in lieu of setting aside land for open space and recreational purposes and developing recreational opportunities, representing the developer’s reasonable and necessary contribution to the provision of open space and recreational opportunities attributable to the construction or improvements within the subdivision or development.  The ordinance may establish thresholds limiting imposition of the provisions of this section to certain districts, or to applications for development exceeding a certain size, or establishing different requirements for different types of districts, or for applications for development of different sizes.

     b.  The regulations shall establish fair and reasonable standards to determine the minimum percentages of land to be set aside for open space and recreational purposes and the proportionate or pro-rata amount of the cost of such facilities that shall be borne by a developer who determines to negotiate an agreement establishing a fee in lieu of setting aside land for those purposes.  The regulations shall set forth criteria to be utilized to determine appropriate locations for open space and recreational opportunities and the types of recreational opportunities to be provided. 

     c.  The ordinance shall authorize the planning board to utilize the technique of cluster development.  The ordinance shall require that prior to the approval of an application for development utilizing cluster development, the planning board shall find similar facts and conclusions as required by section 33 of P.L.1975, c.291 (C.40:55D-45) that are otherwise applicable to planned developments.

     d.  Revenues derived pursuant to this section shall be deposited into an account in a "Municipal Open Space, Recreation, and  Farmland and Historic Preservation Trust Fund" created by the municipality, and shall be used exclusively for the acquisition of lands for recreation and conservation purposes; development of lands acquired for recreation and conservation purposes; and maintenance of lands acquired for recreation and conservation purposes.  Any interest or other income earned on monies deposited into the municipal trust fund shall be credited to the fund to be used for the same purposes as the principal.

     e.  Whenever an approval of a subdivision or site plan contains a condition for the set aside of public open space in accordance with an ordinance adopted pursuant to this section, the determination of just compensation for the public open space pursuant to section 32 of P.L.1975, c.291 (C.40:55D-44) shall be adjusted to reflect the developer’s obligation under the ordinance.

 

     3.  Section 31 of P.L.1975, c.291 (C.40:55D-43) is amended to read as follows:

     31.  a.  An ordinance pursuant to this article permitting planned unit development, planned unit residential development or residential cluster, or an ordinance authorizing cluster development pursuant to section 2 of P.L.    , c.     (C.    ) (pending before the Legislature as this bill) may provide that the municipality or other governmental agency may, at any time and from time to time, accept the dedication of land or any interest therein for public use and maintenance, but the ordinance shall not require, as a condition of the approval of a planned development, subdivision, or site plan that land proposed to be set aside for common open space be dedicated or made available to public use.

     An ordinance pursuant to this article providing for planned unit development, planned unit residential development, or residential cluster or an ordinance authorizing cluster development pursuant to section 2 of P.L.    , c.     (C.    ) (pending before the Legislature as this bill) shall require that the developer provide for an organization for the ownership and maintenance of any open space for the benefit of owners or residents of the development, if said open space is not dedicated to the municipality or other governmental agency.  Such organization shall not be dissolved and shall not dispose of any open space, by sale or otherwise, except to an organization  conceived and established to own and maintain the open space for the benefit of  such development, and thereafter such organization shall not be dissolved or  dispose of any of its open space without first offering to dedicate the same to  the municipality or municipalities wherein the land is located.

     b.  In the event that such organization shall fail to maintain the open space in reasonable order and condition, the municipal body or officer designated by ordinance to administer this subsection may serve written notice upon such organization or upon the owners of the development setting forth the manner in which the organization has failed to maintain the open space in reasonable condition, and said notice shall include a demand that such deficiencies of maintenance be cured within 35 days thereof, and shall state the date and place of a hearing thereon which shall be held within 15 days of the notice.  At such hearing, the designated municipal body or officer, as the case may be, may modify the terms of the original notice as to deficiencies and  may give a reasonable extension of time not to exceed 65 days within which they  shall be cured.  If the deficiencies set forth in the original notice or in the  modification thereof shall not be cured within said 35 days or any permitted  extension thereof, the municipality, in order to preserve the open space and  maintain the same for a period of 1 year may enter upon and maintain such land.   Said entry and maintenance shall not vest in the public any rights to use the  open space except when the same is voluntarily dedicated to the public by the  owners.  Before the expiration of said year, the designated municipal body or  officer, as the case may be, shall, upon its initiative or upon the request of  the organization theretofore responsible for the maintenance of the open space, call a public hearing upon 15 days written notice to such organization and to  the owners of the development, to be held by such municipal body or officer, at  which hearing such organization and the owners of the development shall show  cause why such maintenance by the municipality shall not, at the election of  the municipality, continue for a succeeding year. If the designated municipal  body or officer, as the case may be, shall determine that such organization is  ready and able to maintain said open space in reasonable condition, the  municipality shall cease to maintain said open space at the end of said year.   If the municipal body or officer, as the case may be, shall determine such  organization is not ready and able to maintain said open space in a reasonable  condition, the municipality may, in its discretion, continue to maintain said  open space during the next succeeding year, subject to a similar hearing and determination, in each year thereafter.  The decision of the municipal body or officer in any such case shall constitute a final administrative decision subject to judicial review.

     If a municipal body or officer is not designated by ordinance to administer  this subsection, the governing body shall have the same powers and be subject  to the same restrictions as provided in this subsection.

     c.  The cost of such maintenance by the municipality shall be assessed pro rata against the properties within the development that have a right of enjoyment of the open space in accordance with assessed value at the time of imposition of the lien, and shall become a lien and tax on said properties and be added to and be a part of the taxes to be levied and assessed thereon, and enforced and collected with interest by the same officers and in the same manner as other taxes.

(cf: P.L.1975, c.291, s.31)

 

     4.  Section 52 of P.L.1975, c.291 (C.40:55D-65) is amended to read as follows:

     52.  A zoning ordinance may:

     a.     Limit and restrict buildings and structures to specified districts and regulate buildings and structures according to their type and the nature and extent of their use, and regulate the nature and extent of the use of land for trade, industry, residence, open space or other purposes.

     b.    Regulate the bulk, height, number of stories, orientation, and size of buildings and the other structures; the percentage of lot or development area that may be occupied by structures; lot sizes and dimensions; and for these purposes may specify floor area ratios and other ratios and regulatory techniques governing the intensity of land use and the provision of adequate light and air, including, but not limited to the potential for utilization of renewable energy sources.

     c.     Provide districts for planned developments and for cluster development; provided that an ordinance providing for approval of subdivisions and site plans by the planning board has been adopted and incorporates therein the provisions for such planned developments or cluster development in a manner consistent with article 6 of P.L.1975, c.291 (C.40:55D-37 et seq.) and section 2 of P.L.    , c.    (C.    ) (pending before the Legislature as this bill).  The zoning ordinance shall establish standards governing the type and density, or intensity of land use, in a planned development and in districts in which cluster development is authorized.  Said standards shall take into account that the density, or intensity of land use, otherwise allowable may not be appropriate for a planned development or for the use of cluster development.  The standards may vary the type and density, or intensity of land use, otherwise applicable to the land within a planned development or district in which cluster development is authorized in consideration of the amount, location and proposed use of open space; the location and physical characteristics of the site of the proposed planned development or the proposed subdivision or other proposed development; and the location, design and type of dwelling units and other uses.  Such standards may provide for the clustering of development between noncontiguous parcels and may, in order to encourage the flexibility of density, intensity of land uses, design and type, authorize a deviation in various clusters from the density, or intensity of use, established for an entire planned development or district in which cluster development is authorized.  The standards and criteria by which the design, bulk and location of buildings are to be evaluated shall be set forth in the zoning ordinance and all standards and criteria for any feature of a planned development shall be set forth in such ordinance with sufficient certainty to provide reasonable criteria by which specific proposals for planned development and applications for development utilizing cluster development can be evaluated.

     d.    Establish, for particular uses or classes of uses, reasonable standards of performance and standards for the provision of adequate physical improvements including, but not limited to, off-street parking and loading areas, marginal access roads and roadways, other circulation facilities and water, sewerage and drainage facilities; provided that section 41 of P.L.1975, c.291 (C.40:55D-53) shall apply to such improvements.

     e.     Designate and regulate areas subject to flooding (1) pursuant to P.L.1972, c.185 (C.58:16A-55 et seq.) or (2) as otherwise necessary in the absence of appropriate flood hazard area designations pursuant to P.L.1962, c.19 (C.58:16A-50 et seq.) or floodway regulations pursuant to P.L.1972, c.185 or minimum standards for local flood fringe area regulation pursuant to P.L.1972, c.185.

     f.     Provide for conditional uses pursuant to section 54 of P.L.1975, c.291 (C.40:55D-67).

     g.     Provide for senior citizen community housing.

     h.     Require as a condition for any approval which is required pursuant to such ordinance and the provisions of this chapter, that no taxes or assessments for local improvements are due or delinquent on the property for which any application is made.

     i.      Provide for historic preservation pursuant to section 5 of P.L.1991, c.199  (C.40:55D-65.1).

     j.     Provide for sending and receiving zones for a development transfer program established pursuant to P.L.2004, c.2 (C.40:55D-137 et al.).

(cf: P.L.2004, c.2, s.39)

 

     5. This act shall take effect immediately.

 

 

STATEMENT

 

     This bill authorizes municipalities to condition development approvals on a developer’s setting aside land to be used for open space or recreational areas and facilities, or to pay an assessment in lieu of the set-aside.  The bill has been prepared in response to a recent New Jersey court decision, New Jersey Shore Builders Association v. Township of Jackson 401 N.J. Super. 152 (App. Div. 2008), which held that current law does not empower municipalities to require developers to set aside land for common open space or recreational areas and facilities, except with regard to applications for planned developments. 

     Although recognizing that “the construction of additional homes, whether qualifying as planned developments or otherwise, increases a municipality's open space and recreational needs” and that “maintaining common open space and recreational areas are important goals of the” Municipal Land Use Law, the court concluded that the “Legislature has chosen to limit a municipality's authority to obtain set-asides for common open space and recreational areas to planned developments, and to limit off-site contributions to water, sewer, drainage and street improvements.”  [401 N.J.Super. 171-172].

     Under the bill, a municipality would be allowed to adopt an ordinance allowing its planning board to condition subdivision or site plan approvals upon the setting aside of property for open space and for recreation purposes.  The ordinance would enable the planning board and a developer to negotiate a fee in lieu of setting aside land.  The bill would afford municipalities discretion, in adopting their ordinances, to address the needs of their localities so long as they are fair and reasonable and establish consistent criteria. An ordinance permitted under this bill would authorize planning boards to utilize clustering techniques, similar to current provisions for planned developments. 

     The bill specifies that any fee revenues derived from fees in lieu of set-asides permitted under the bill would be deposited into an account in a "Municipal Open Space, Recreation, and  Farmland and Historic Preservation Trust Fund" created by the municipality, and dedicated for recreation and conservation purposes.