Bill Text: NJ A1536 | 2018-2019 | Regular Session | Introduced
Bill Title: "Property Rights and Affordable Housing Act of 2014."
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2018-01-09 - Introduced, Referred to Assembly Housing and Community Development Committee [A1536 Detail]
Download: New_Jersey-2018-A1536-Introduced.html
STATE OF NEW JERSEY
218th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2018 SESSION
Sponsored by:
Assemblyman MICHAEL PATRICK CARROLL
District 25 (Morris and Somerset)
SYNOPSIS
"Property Rights and Affordable Housing Act of 2014."
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel.
An Act concerning certain residential property and designated as the "Property Rights and Affordable Housing Act of 2014," amending and supplementing P.L.1975, c.291.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) The Legislature finds and declares that:
a. Pursuant to Article IV, Section VI, paragraph 2 of the New Jersey Constitution, the people empowered the Legislature to enact general laws permitting municipalities to adopt zoning ordinances.
b. This power to enact general laws permitting municipalities to adopt zoning ordinances, and to alter such laws, resides exclusively with the Legislature, and the policies reflected in those laws are not properly subject to judicial revision or invalidation.
c. Commencing with the determination by the New Jersey Supreme Court in South Burlington County NAACP v. Mount Laurel, 67 N.J. 151 (1975), the Judiciary has usurped legislative power based upon notions of "substantive due process" and "equal protection," neither of which phrases actually appear in the State Constitution.
d. In that ruling, the New Jersey Supreme Court asserted that all police power regulations "must promote public health, safety, morals or the general welfare," then arrogated to itself and the Judiciary the power to determine whether zoning ordinances promote the general welfare.
e. The Court's arrogation of power impermissibly intrudes upon the Legislature's exclusive power to enact general laws permitting municipalities to zone, contrary to basic concepts of separation of powers.
f. While the Legislature's power to adopt zoning statutes is plenary, vis-a-vis the Judiciary, the Legislature's power is subject to the natural, fundamental rights of property owners to use their property in a manner not inconsistent with the rights of others.
g. Neither the people nor the Legislature labor under any constitutional obligation to affirmatively provide housing, or any other service, to anyone.
h. The deleterious, indeed catastrophic effects of Mount Laurel and its progeny include inappropriate development in suburban or rural areas, environmental degradation, and massive property tax hikes.
i. The effects of this judicially imposed experiment in social engineering has been to otherwise undermine State policies, including open space preservation, property tax reduction, and urban revitalization, all of which are better served when the free market, not the Judiciary (and, often, not local regulations) dictate where housing should be built.
j. Permitting owners to employ their property as they see fit, thereby permitting market forces to address the need for housing at locations and prices that people desire, is a much less expensive and much better system than judicial ukases, designed to place housing where judges think it should go.
2. Section 2 of P.L.1975, c.291 (C.40:55D-2) is amended to read as follows:
2. Purpose of the act. It is the intent and purpose of this act:
a. To encourage municipal action to guide the appropriate use or development of all lands in this State, in a manner which will promote the public health, safety, morals, and general welfare, consistent with the natural rights of property owners to employ their property in a manner which does not adversely affect the rights of others;
b. To secure safety from fire, flood, panic and other natural and man-made disasters;
c. To provide adequate light, air and open space;
d. To ensure that the development of individual municipalities does not conflict with the development and general welfare of neighboring municipalities, the county and the State as a whole;
e. To promote the establishment of appropriate population densities and concentrations that will contribute to the well-being of persons, neighborhoods, communities and regions and preservation of the environment;
f. To encourage the appropriate and efficient expenditure of public funds by the coordination of public development with land use policies;
g. To provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space, both public and private, according to their respective environmental requirements in order to meet the needs of all New Jersey citizens;
h. To encourage the location and design of transportation routes which will promote the free flow of traffic while discouraging location of such facilities and routes which result in congestion or blight;
i. To promote a desirable visual environment through creative development techniques and good civic design and arrangement;
j. To promote the conservation of historic sites and districts, open space, energy resources and valuable natural resources in the State and to prevent urban sprawl and degradation of the environment through improper use of land;
k. To encourage planned unit developments which incorporate the best features of design and relate the type, design and layout of residential, commercial, industrial and recreational development to the particular site;
l. To encourage senior citizen community housing construction;
m. To encourage coordination of the various public and private procedures and activities shaping land development with a view of lessening the cost of such development and to the more efficient use of land;
n. To promote utilization of renewable energy resources;
o. To promote the maximum practicable recovery and recycling of recyclable materials from municipal solid waste through the use of planning practices designed to incorporate the State Recycling Plan goals and to complement municipal recycling programs; and
p. To enable municipalities the flexibility to offer alternatives to traditional development, through the use of equitable and effective planning tools including clustering, transferring development rights, and lot-size averaging in order to concentrate development in areas where growth can best be accommodated and maximized while preserving agricultural lands, open space, and historic sites.
(cf: P.L.2013, c.106, s.1)
3. 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.
"Accessory apartment" means a self-contained residential dwelling unit, not exceeding 1,000 square feet in gross living area, with a kitchen, sanitary facilities, sleeping quarters, and a private entrance, which is created within an owner-occupied single family residence.
"Accessory unit" means a structure related to an owner-occupied single family dwelling and complying with the setbacks for accessory structures generally applicable in the zone, or created within the footprint of an existing accessory structure, and not in excess of 1,000 square feet in gross living area.
"Administrative officer" means the clerk of the municipality, unless a different municipal official or officials are designated by ordinance or statute.
"Agricultural restriction" means an "agricultural deed restriction for farmland preservation purposes" as defined in section 3 of P.L.1983, c.32 (C.4:1C-13).
"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, cluster 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 contiguous cluster or noncontiguous cluster that is not a planned development.
"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.
"Conservation restriction" means a "conservation restriction" as defined in section 2 of P.L.1979, c.378 (C.13:8B-2).
"Contiguous cluster" means a contiguous area to be developed as a single entity according to a plan containing a section or sections to be developed for residential purposes, nonresidential purposes, or a combination thereof, at a greater concentration of density or intensity of land use than authorized within the section or sections under conventional development, in exchange for the permanent preservation of another section or other sections of the area as common or public open space, or for historic or agricultural purposes, or a combination thereof.
"Conventional" means development other than cluster development or 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.2013, c.106, s.2)
4. (New section) a. Accessory units and accessory apartments shall be permitted uses in all residential zones on lots in excess of 7,500 square feet. Variance relief shall not be required for any violation of setback provisions, not in excess of five feet from those which presently exist, attendant to creation of first floor access to any such units or apartments. Variance relief shall not be required for the location of an accessory unit within the footprint of an existing accessory structure, provided that the height of such unit shall not, unless permitted by ordinance, exceed 25 feet or the height of the existing accessory structure, whichever is greater.
b. In the event that construction of an accessory apartment or accessory unit necessitates variance relief from any bulk provision of an otherwise generally applicable zoning ordinance, same shall proceed pursuant to the provisions of paragraph (2) of subsection c. of section 57 of P.L.1975, c.291 (C.40:55D-70), and the construction of such accessory apartment or accessory unit shall be deemed to advance the purposes of zoning, subject to a determination by the board of adjustment that said construction can proceed without substantial negative effect upon the health, safety, morals, and general welfare of the municipality or the residents of the vicinity.
c. Accessory apartments and accessory units shall not be subject to the provisions of the "Condominium Act," P.L.1969, c.257 (C.46:8B-1 et seq.), and shall not be converted into separate ownership.
d. Accessory apartments and accessory units constructed pursuant to this section shall not be considered when determining any additional fair share housing obligation.
e. Development of accessory apartments and accessory units constructed pursuant to this section shall be exempt from the imposition and collection of affordable housing fees and charges.
5. This act shall take effect immediately.
STATEMENT
This bill would preempt local zoning ordinances by providing that accessory units and accessory apartments, on lots in excess of 7,500 square feet, are permitted uses in all residential zones. The bill provides that minor changes to the setback or height of a building or structure due to construction of an accessory unit or accessory apartment would not require approval of a variance. The bill also provides that if construction of an accessory apartment or unit necessitates a variance from any other bulk provision of a zoning ordinance, the applicant for variance relief shall be considered pursuant to paragraph (2) of subsection c. of section 57 of P.L.1975, c.291, and the construction of the accessory apartment or accessory unit shall be deemed to advance the purposes of zoning, subject to a determination by the board of adjustment that the construction can proceed without substantial negative effect upon the health, safety, morals, and general welfare of the municipality or the residents of the vicinity.
The bill defines "accessory apartment" as a self-contained residential dwelling unit, not exceeding 1,000 square feet in area, with a kitchen, sanitary facilities, sleeping quarters and a private entrance, which is created within an owner-occupied single family residence; and "accessory unit" as a structure related to an owner-occupied single family dwelling and complying with the setbacks for accessory structures generally applicable in the zone, or created within the footprint of an existing accessory structure, and not in excess of 1,000 square feet.
The bill provides that:
· accessory apartments and accessory units are not subject to the "Condominium Act," P.L.1969, c.257 (C.46:8B-1 et seq.), and cannot be converted into separate ownership;
· accessory apartments and units constructed pursuant to this bill shall not be considered when determining a fair share housing obligation; and
· accessory apartments and units constructed pursuant to this bill shall be exempt from the imposition and collection of affordable housing fees and charges.
