Bill Text: NJ A3584 | 2022-2023 | Regular Session | Introduced
Bill Title: Concerns development and use of accessory dwelling units.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Introduced - Dead) 2022-03-10 - Introduced, Referred to Assembly Housing Committee [A3584 Detail]
Download: New_Jersey-2022-A3584-Introduced.html
Sponsored by:
Assemblywoman BRITNEE N. TIMBERLAKE
District 34 (Essex and Passaic)
SYNOPSIS
Concerns development and use of accessory dwelling units.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning accessory dwelling units, supplementing P.L.1975, c.291 (C.40:55D-1 et seq.) and P.L.1993, c.30 (C.45:22A-43 et seq.), and amending P.L.1985, c.222.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) a. The Legislature finds and declares that:
(1) Accessory dwelling units are a valuable form of housing and present a way to expand the State's housing supply that is both cost-effective and consistent with sound planning and environmental principles.
(2) Accessory dwelling units provide housing for family members, the elderly, in-home health care providers, individuals with disabilities, households of low and moderate income, and others, often at below-market prices within existing neighborhoods.
(3) Homeowners who develop accessory dwelling units can benefit from added income and an increased sense of security.
(4) Allowing accessory dwelling units in single-family and two-family residential zones will make it possible to expand the state of New Jersey's rental housing stock, and meet current and future housing demand.
(5) Accessory dwelling units offer lower-cost housing within existing neighborhoods while maintaining the architectural character of a neighborhood.
(6) Accessory dwelling units should therefore be considered an essential component of New Jersey's housing supply.
b. It is the intent of the Legislature that municipal land use regulations shall provide for the creation of accessory dwelling units consistent with the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill), and that no provision of any such regulation shall restrict the ability of a property owner to develop accessory dwelling units consistent with the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill).
2. (New section) As used in sections 1 through 7 of P.L. , c. (C. through C. ) (pending before the Legislature as this bill):
"Accessory dwelling unit" means a residential dwelling unit that provides complete independent living facilities for one or more persons, including provisions for living, sleeping, eating, cooking, and sanitation, and is located within a proposed or existing primary dwelling, within an existing or proposed accessory structure, constructed in whole or part as an extension to a proposed or existing primary dwelling, or constructed as a separate detached structure on the same lot as the existing or proposed primary dwelling.
"Accessory structure" means a structure that is accessory and incidental to a dwelling located on the same lot.
"Buildable area" means that area within the rear yard of a lot on which a primary dwelling is located that is beyond a five-foot setback line from the side and rear property lines.
"Commissioner" means the Commissioner of Community Affairs.
"Department" means the Department of Community Affairs.
"Primary dwelling" means a single-family or two-family dwelling proposed or existing on a residential lot.
"Single-family dwelling" means any structure that contains a single-family dwelling unit on an individual lot, including structures that are attached to other single-family dwellings with a common party wall commonly known as "semi-detached" houses, "row houses" or "townhouses".
"Tandem parking" means parking two or more automobiles on a driveway or another location on a lot, aligned so that one automobile is parked immediately behind the another.
"Two-family dwelling" means any structure that contains two separate dwelling units on an individual lot, whether separated horizontally or vertically.
3. (New section) a. A municipality may adopt or amend existing land use regulations to authorize a person to develop one or more accessory dwelling units on a lot owned by the person, and located within an area meeting the requirements of subsection c. of this section, in a manner consistent with the standards and procedures set forth in P.L. , c. (C. ) (pending before the Legislature as this bill).
b. A provision of a municipal land use regulation that is in place on the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill) but fails to comply with the requirements of P.L. , c. (C. ) (pending before the Legislature as this bill) shall be null, void, and unenforceable. A municipality shall follow the requirements of P.L. , c. (C. ) (pending before the Legislature as this bill) when considering an application to develop an accessory dwelling unit, unless and until the municipality adopts or amends its land use regulations in a manner consistent with the standards and procedures set forth in P.L. , c. (C. ) (pending before the Legislature as this bill).
c. Except as otherwise provided in section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill), land use regulations adopted or amended pursuant to P.L. c. (C. ) (pending before the Legislature as this bill) shall provide that an accessory dwelling unit is a permitted use as of right on a lot if a primary dwelling exists or is being proposed on the lot, and the lot is located within a zone in which a single-family dwelling or a two-family dwelling is permitted under the municipal land use regulations. An accessory dwelling unit shall be deemed to not exceed the allowable density for the lot upon which the accessory dwelling unit is proposed to be located or deemed to be the expansion of a prior nonconforming use.
d. The land use regulations shall also provide that:
(1) An accessory dwelling unit may be either located within or attached to the proposed or existing primary dwelling or to a proposed or existing garage or other accessory structure, or detached from the proposed or existing primary dwelling but located on the same lot as the proposed or existing primary dwelling. A passageway between the primary dwelling and a detached accessory structure shall not be required.
(2) An accessory dwelling unit may be rented separately from the primary dwelling, but shall not be sold or otherwise conveyed separately from the primary dwelling.
(3) Land use regulations shall not prohibit an applicant from seeking approval to develop an accessory dwelling unit, either simultaneously with or separately from the development of a primary dwelling.
4. (New section) a. Municipal land use regulations concerning accessory dwelling units shall comply with the following standards:
(1) The minimum floor area requirement, if any, shall be no greater than 300 square feet.
(2) The maximum floor area requirement, if any, shall be no smaller than 1,200 square feet, except as otherwise provided in subsection h. of section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill).
(3) The maximum height requirement, if any, shall be no less than 20 feet.
(4) A developer shall not be required to install fire sprinklers in an accessory dwelling unit if there is no requirement to install fire sprinklers in the primary dwelling.
(5) (a) There shall be no setback requirements for any accessory dwelling unit that is located within an existing structure or a structure constructed in the same location and to the same dimensions as an existing structure being converted to an accessory dwelling unit;
(b) There shall be no more than a five-foot sideyard and rearyard setback requirement for any other accessory dwelling unit.
(6) An accessory dwelling unit shall provide direct exterior access separate from the direct exterior access from the primary dwelling.
(7) Parking requirements for accessory dwelling units shall not exceed one parking space per accessory dwelling unit, which may be provided as tandem parking.
(8) If a garage or other covered parking structure or any parking space within such structure is removed in conjunction with the construction of an accessory dwelling unit or converted to an accessory dwelling unit, the municipality shall not require that those offstreet parking spaces be replaced.
b. A provision of a land use regulation that does not comply with the provisions of this section shall be void and shall not be enforced by a municipal agency.
5. (New section) a. A municipal land use regulation may provide that a municipal agency shall not approve an application to develop an accessory dwelling unit if either:
(1) the proposed site is located within an area in which there exists insufficient public sewer or water service, and within which there exists severe constraints on the use of wells and septic tanks, as determined by a competent authority, so to render the addition of a dwelling unit hazardous to the public health; or
(2) the proposed site is located on a lot so small that an 800 square foot structure cannot be reasonably accommodated without violating the minimum sideyard or rearyard setback requirements of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill).
b. A municipal land use regulation may establish reasonable landscaping standards for detached accessory dwelling units.
c. A municipal land use regulation may impose architectural review requirements for an application proposing to develop an accessory dwelling unit within an area designated as a historic district by a competent state or local authority, if the proposed development requires either new construction or exterior modification of an existing structure.
d. A municipal land use regulation may reduce or eliminate off-street parking requirements imposed upon the development of an accessory dwelling unit otherwise applicable under municipal land use regulation or Statewide site improvement standards adopted pursuant to section 4 of P.L.1993, c.32 (C.40:55D-40.4).
e. A municipal land use regulation may provide that a municipal agency shall not approve an application to develop an accessory dwelling unit on a parcel of property unless the applicant is the owner-occupant of an existing or proposed primary dwelling on the property.
f. A municipal land use regulation may provide that an accessory dwelling unit shall not be rented for a period of less than 30 days.
g. A municipal land use regulation may provide that an accessory dwelling unit is a permitted use in zoning districts in addition to those required pursuant to subsection c. of section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill), including but not limited to multifamily and mixed use districts.
h. A municipal land use regulation may limit the maximum size of an accessory dwelling unit constructed separately from the primary dwelling to that square footage that is not in excess of 60 percent of the lot's buildable area.
6. (New section) a. (1) An application to develop an accessory dwelling unit shall be considered and approved as a ministerial action without a public hearing, and without review beyond that necessary to determine compliance with: the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill); or, if the municipality has adopted land use regulations consistent with those provisions, the municipality's land use regulations.
(2) A municipal agency shall provide an applicant with a decision on an application to develop an accessory dwelling unit on a lot that contains an existing or proposed single-family or two-family dwelling within 60 days of the date the applicant submits a complete application.
(3) If an application to develop an accessory dwelling unit is submitted together with an application to develop a new single-family dwelling on the same lot, upon the applicant's request, both applications shall be considered and acted upon by the appropriate approving authority as a single application. An approval of an application to develop an accessory dwelling unit that is submitted together with an application to develop a new single-family dwelling on the same lot shall not impose conditions on approval of the accessory dwelling unit beyond those necessary to comply with the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill), or with municipal land use regulations adopted to be consistent with those provisions.
(4) Unless an applicant agrees to toll the 60-day time period allowed for a municipal agency to render a decision on an application pursuant to paragraph (2) of this subsection, if the municipal agency does not act upon a complete application within the 60-day time period, the application shall be deemed approved. A municipal agency may charge a reasonable fee to cover the costs associated with reviewing and approving an application to develop an accessory dwelling unit.
b. A municipality shall not interpret and apply a provision of any other municipal ordinance, policy, or regulation so to delay or deny approval of an application to develop an accessory dwelling unit.
c. A municipality shall not condition approval of an application to develop an accessory dwelling unit upon the correction of a nonconforming zoning condition.
d. (1) For an accessory dwelling unit created within an existing primary dwelling, or as an extension onto an existing primary dwelling, the applicant shall not be required to install a new or separate utility connection directly between the accessory dwelling unit and the utility or impose a related connection fee or capacity charge, unless the accessory dwelling unit was constructed together with a new single-family dwelling.
(2) For an accessory dwelling unit that is created as a separate structure that is not part of an existing primary dwelling, the applicant may be required to install a new or separate utility connection directly between the accessory dwelling unit and the utility, in which case the connection may be subject to a connection fee or capacity charge that shall be no more than half the fee charged for a new primary dwelling and that shall not exceed the reasonable cost of providing this service.
e. Nothing contained in this section shall supersede provisions of the State Uniform Construction Code, promulgated to effectuate the "State Uniform Construction Code Act," P.L.1975, c.217 (C.52:27D-119 et seq.), applicable to the construction of an accessory dwelling unit; provided, however, that with respect to an accessory dwelling unit or part thereof being constructed within an existing primary dwelling, the provisions of the Rehabilitation Subcode adopted pursuant to section 5 of P.L.1975, c.217 (C.52:27D-123) shall apply.
f. A municipality shall not issue a certificate of occupancy for an accessory dwelling unit before the municipality issues a certificate of occupancy for the primary dwelling.
7. (New section) a. A municipality shall submit land use regulations concerning accessory dwelling units that it adopts pursuant to the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) to the Department of Community Affairs within 60 days of the date of adoption of the regulations.
b. The department shall review land use regulations concerning accessory dwelling units that a municipality submits pursuant to subsection a. of this section, and shall notify the municipality, within 60 days of the date the department receives a municipality's land use regulations, of any provision in the regulations that do not comply with the provisions and intent of P.L. , c. (C. ) (pending before the Legislature as this bill). If the department does not notify a municipality that a provision of its land use regulations do not comply with the provisions and intent of P.L. , c. (C. ) (pending before the Legislature as this bill) within 60 days of the date the department receives a municipality's land use regulations, the regulations shall be deemed approved.
c. Within 90 days of the date a municipality receives notice of the department's determination that a provision of the municipality's land use regulations does not comply with the provisions and intent of P.L. , c. (C. ) (pending before the Legislature as this bill), the municipality shall either:
(1) amend the regulations to conform them with the provisions and intent of P.L. , c. (C. ) (pending before the Legislature as this bill); or
(2) respond to the departmental notice by setting forth the municipality's reasons why its regulations do not comply with the provisions and intent of P.L. , c. (C. ) (pending before the Legislature as this bill), and requesting the department to approve the municipal regulations.
d. The department shall review any response from a municipality, giving full consideration to the specific environmental and other conditions affecting that municipality as well as the intent of P.L. , c. (C. ) (pending before the Legislature as this bill), and shall notify the municipality either:
(1) that the municipality may retain all or some part of its land use regulations; or
(2) that the municipality is required to amend provisions of its land use regulations to be consistent with the provisions and intent of P.L. , c. (C. ) (pending before the Legislature as this bill).
e. Within 60 days of the date of receipt of the department's notice pursuant to paragraph (2) of subsection d. of this section, a municipality shall amend its regulations as may be required by the department pursuant to subsection d. of this section.
f. If a municipality does not approve an application to develop an accessory dwelling unit, or imposes conditions on an approval of an application to develop an accessory dwelling unit, the applicant may appeal the decision to the commissioner. If the commissioner determines that the municipality's reasons for withholding approval or imposing conditions are inconsistent with the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill), notwithstanding whether the municipal ordinance was approved as a result of inaction by the department as set forth in subsection c. of this section, the commissioner shall approve the application, and shall levy the cost of the proceedings, including the applicant's legal expenses, if any, against the municipality. In the event of a subsequent judicial appeal of the commissioner's decision, the court shall apply the same standard of review as set forth in this subsection for the commissioner's decision on an appeal.
g. The department may adopt rules and regulations for the purpose of clarifying or supplementing any of the terms, standards or procedures set forth in P.L. , c. (C. ) (pending before the Legislature as this bill).
8. (New section) a. (1) An association formed for the management of common elements and facilities of a planned real estate development, regardless of whether organized pursuant to section 1 of P.L.1993, c.30 (C.45:22A-43), shall not, after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), adopt or enforce a restriction, covenant, bylaw, rule, regulation, master deed provision, or provision of a governing document prohibiting or unreasonably restricting the development or use of an accessory dwelling unit on a lot zoned for single-family residential use if the proposed accessory dwelling unit is consistent with the requirements of P.L. , c. (C. ) (pending before the Legislature as this bill).
(2) Any covenant, restriction, or condition contained in a deed, contract, security instrument, or other instrument affecting the transfer or sale of any interest in a planned real estate development, and any provision of a master deed, bylaw, or other governing document that either prohibits or unreasonably restricts the development or use of an accessory dwelling unit on a lot zoned for single-family or two-family residential use, is void and unenforceable if the proposed accessory dwelling unit is consistent with the requirements of P.L. , c. (C. ) (pending before the Legislature as this bill).
b. An association may impose design or landscaping conditions on the development of an accessory dwelling unit if the conditions:
(1) are not in excess of conditions generally imposed within the planned real estate development; and
(2) do not unreasonably increase the cost to construct, effectively prohibit the construction of, or extinguish the ability to otherwise construct, an accessory dwelling unit consistent with the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill).
9. Section 4 of P.L.1985, c.222 (C.52:27D-304) is amended to read as follows:
4. As used in P.L.1985, c.222 (C.52:27D-301 et al.):
a. "Council" means the Council on Affordable Housing established in P.L.1985, c.222 (C.52:27D-301 et al.), which shall have primary jurisdiction for the administration of housing obligations in accordance with sound regional planning considerations in this State.
b. "Housing region" means a geographic area of not less than two nor more than four contiguous, whole counties which exhibit significant social, economic and income similarities, and which constitute to the greatest extent practicable the primary metropolitan statistical areas as last defined by the United States Census Bureau prior to the effective date of P.L.1985, c.222 (C.52:27D-301 et al.).
c. "Low income housing" means housing affordable according to federal Department of Housing and Urban Development or other recognized standards for home ownership and rental costs and occupied or reserved for occupancy by households with a gross household income equal to 50 percent or less of the median gross household income for households of the same size within the housing region in which the housing is located.
d. "Moderate income housing" means housing affordable according to federal Department of Housing and Urban Development or other recognized standards for home ownership and rental costs and occupied or reserved for occupancy by households with a gross household income equal to more than 50% but less than 80 percent of the median gross household income for households of the same size within the housing region in which the housing is located.
e. "Resolution of participation" means a resolution adopted by a municipality in which the municipality chooses to prepare a fair share plan and housing element in accordance with P.L.1985, c.222 (C.52:27D-301 et al.).
f. "Inclusionary development" means a residential housing development in which a substantial percentage of the housing units are provided for a reasonable income range of low and moderate income households.
g. "Conversion" means the conversion of existing commercial, industrial, or residential structures for low and moderate income housing purposes where a substantial percentage of the housing units are provided for a reasonable income range of low and moderate income households.
h. "Development" means any development for which permission may be required pursuant to the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.).
i. "Agency" means the New Jersey Housing and Mortgage Finance Agency established by P.L.1983, c.530 (C.55:14K-1 et seq.).
j. "Prospective need" means a projection of housing needs based on development and growth which is reasonably likely to occur in a region or a municipality, as the case may be, as a result of actual determination of public and private entities. In determining prospective need, consideration shall be given to approvals of development applications, real property transfers, and economic projections prepared by the State Planning Commission established by sections 1 through 12 of P.L.1985, c.398 (C.52:18A-196 et seq.).
k. " Person with a disability" means a person with a physical disability, infirmity, malformation, or disfigurement which is caused by bodily injury, birth defect, aging, or illness including epilepsy and other seizure disorders, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impairment, deafness or hearing impairment, the inability to speak or a speech impairment, or physical reliance on a service animal, wheelchair, or other remedial appliance or device.
l. "Adaptable" means constructed in compliance with the technical design standards of the barrier free subcode adopted by the Commissioner of Community Affairs pursuant to the "State Uniform Construction Code Act," P.L.1975, c.217 (C.52:27D-119 et seq.) and in accordance with the provisions of section 5 of P.L.2005, c.350 (C.52:27D-123.15).
m. "Very low income housing" means housing affordable according to federal Department of Housing and Urban Development or other recognized standards for home ownership and rental costs and occupied or reserved for occupancy by households with a gross household income equal to 30 percent or less of the median gross household income for households of the same size within the housing region in which the housing is located.
n. "Accessory dwelling unit" means a residential dwelling unit that provides complete independent living facilities for one or more persons, including provisions for living, sleeping, eating, cooking, and sanitation, and is located within a proposed or existing primary dwelling, within an existing or proposed accessory structure, constructed in whole or part as an extension to a proposed or existing primary dwelling, or constructed as a separate detached structure on the same lot as the existing or proposed primary dwelling.
(cf: P.L.2017, c.131, s.199)
10. Section 11 of P.L.1985, c.222 (C.52:27D-311) is amended to read as follows:
11. a. In adopting its housing element, the municipality may provide for its fair share of low and moderate income housing by means of any technique or combination of techniques which provide a realistic opportunity for the provision of the fair share. The housing element shall contain an analysis demonstrating that it will provide such a realistic opportunity, and the municipality shall establish that its land use and other relevant ordinances have been revised to incorporate the provisions for low and moderate income housing. In preparing the housing element, the municipality shall consider the following techniques for providing low and moderate income housing within the municipality, as well as such other techniques as may be published by the council or proposed by the municipality:
(1) Rezoning for densities necessary to assure the economic viability of any inclusionary developments, either through mandatory set-asides or density bonuses, as may be necessary to meet all or part of the municipality's fair share in accordance with the regulations of the council and the provisions of subsection h. of this section;
(2) Determination of the total residential zoning necessary to assure that the municipality's fair share is achieved;
(3) Determination of measures that the municipality will take to assure that low and moderate income units remain affordable to low and moderate income households for an appropriate period of not less than six years;
(4) A plan for infrastructure expansion and rehabilitation if necessary to assure the achievement of the municipality's fair share of low and moderate income housing;
(5) Donation or use of municipally owned land or land condemned by the municipality for purposes of providing low and moderate income housing;
(6) Tax abatements for purposes of providing low and moderate income housing;
(7) Utilization of funds obtained from any State or federal subsidy toward the construction of low and moderate income housing;
(8) Utilization of municipally generated funds toward the construction of low and moderate income housing; and
(9) The purchase of privately owned real property used for residential purposes at the value of all liens secured by the property, excluding any tax liens, notwithstanding that the total amount of debt secured by liens exceeds the appraised value of the property, pursuant to regulations promulgated by the Commissioner of Community Affairs pursuant to subsection b. of section 41 of P.L.2000, c.126 (C.52:27D-311.2).
b. The municipality may provide for a phasing schedule for the achievement of its fair share of low and moderate income housing.
c. (Deleted by amendment, P.L.2008, c.46)
d. Nothing in P.L.1985, c.222 (C.52:27D-301 et al.) shall require a municipality to raise or expend municipal revenues in order to provide low and moderate income housing.
e. When a municipality's housing element includes the provision of rental housing units in a community residence for the developmentally disabled, as defined in section 2 of P.L.1977, c.448 (C.30:11B-2), which will be affordable to persons of low and moderate income, and for which adequate measures to retain such affordability pursuant to paragraph (3) of subsection a. of this section are included in the housing element, those housing units shall be fully credited as permitted under the rules of the council towards the fulfillment of the municipality's fair share of low and moderate income housing.
f. It having been determined by the Legislature that the provision of housing under P.L.1985, c.222 (C.52:27D-301 et al.) is a public purpose, a municipality or municipalities may utilize public monies to make donations, grants or loans of public funds for the rehabilitation of deficient housing units and the provision of new or substantially rehabilitated housing for low and moderate income persons, providing that any private advantage is incidental.
g. A municipality which has received substantive certification from the council, and which has actually effected the construction of the affordable housing units it is obligated to provide, may amend its affordable housing element or zoning ordinances without the approval of the council.
h. Whenever affordable housing units are proposed to be provided through an inclusionary development, a municipality shall provide, through its zoning powers, incentives to the developer, which shall include increased densities and reduced costs, in accordance with the regulations of the council and this subsection.
i. The council, upon the application of a municipality and a developer, may approve reduced affordable housing set-asides or increased densities to ensure the economic feasibility of an inclusionary development.
j. A municipality may enter into an agreement with a developer or residential development owner to provide a preference for affordable housing to low to moderate income veterans who served in time of war or other emergency, as defined in section 1 of P.L.1963, c.171 (C.54:4-8.10), of up to 50 percent of the affordable units in that particular project. This preference shall be established in the applicant selection process for available affordable units so that applicants who are veterans who served in time of war or other emergency, as referenced in this subsection, and who apply within 90 days of the initial marketing period shall receive preference for the rental of the agreed-upon percentage of affordable units. After the first 90 days of the initial 120-day marketing period, if any of those units subject to the preference remain available, then applicants from the general public shall be considered for occupancy. Following the initial 120-day marketing period, previously qualified applicants and future qualified applicants who are veterans who served in time of war or other emergency, as referenced in this subsection, shall be placed on a special waiting list as well as the general waiting list. The veterans on the special waiting list shall be given preference for affordable units, as the units become available, whenever the percentage of preference-occupied units falls below the agreed upon percentage. Any agreement to provide affordable housing preferences for veterans pursuant to this subsection shall not affect a municipality's ability to receive credit for the unit from the council, or its successor.
k. A municipality's housing element shall include a plan to promote the creation of accessory dwelling units that will be offered at affordable rent for low and moderate income households.
(cf: P.L.2013, c.6, s.1)
11. Section 20 of P.L.1985, c.222 (C.52:27D-320) is amended to read as follows:
20. There is established in the Department of Community Affairs a separate trust fund, to be used for the exclusive purposes as provided in this section, and which shall be known as the "New Jersey Affordable Housing Trust Fund." The fund shall be a non-lapsing, revolving trust fund, and all monies deposited or received for purposes of the fund shall be accounted for separately, by source and amount, and remain in the fund until appropriated for such purposes. The fund shall be the repository of all State funds appropriated for affordable housing purposes, including, but not limited to, the proceeds from the receipts of the additional fee collected pursuant to paragraph (2) of subsection a. of section 3 of P.L.1968, c.49 (C.46:15-7), proceeds from available receipts of the Statewide non-residential development fees collected pursuant to section 35 of P.L.2008, c.46 (C.40:55D-8.4), monies lapsing or reverting from municipal development trust funds, or other monies as may be dedicated, earmarked, or appropriated by the Legislature for the purposes of the fund. All references in any law, order, rule, regulation, contract, loan, document, or otherwise, to the "Neighborhood Preservation Nonlapsing Revolving Fund" shall mean the "New Jersey Affordable Housing Trust Fund." The department shall be permitted to utilize annually up to 7.5 percent of the monies available in the fund for the payment of any necessary administrative costs related to the administration of the "Fair Housing Act," P.L.1985, c.222 (C.52:27D-301 et al.), or any costs related to administration of P.L.2008, c.46 (C.52:27D-329.1 et al.).
a. Except as permitted pursuant to subsection g. of this section, and by section 41 of P.L.2009, c.90 (C.52:27D-320.1), the commissioner shall award grants or loans from this fund for housing projects and programs in municipalities whose housing elements have received substantive certification from the council, in municipalities receiving State aid pursuant to P.L.1978, c.14 (C.52:27D-178 et seq.), in municipalities subject to a builder's remedy as defined in section 28 of P.L.1985, c.222 (C.52:27D-328), or in receiving municipalities in cases where the council has approved a regional contribution agreement and a project plan developed by the receiving municipality.
Of those monies deposited into the "New Jersey Affordable Housing Trust Fund" that are derived from municipal development fee trust funds, or from available collections of Statewide non-residential development fees, a priority for funding shall be established for projects in municipalities that have petitioned the council for substantive certification.
Programs and projects in any municipality shall be funded only after receipt by the commissioner of a written statement in support of the program or project from the municipal governing body.
b. The commissioner shall establish rules and regulations governing the qualifications of applicants, the application procedures, and the criteria for awarding grants and loans and the standards for establishing the amount, terms, and conditions of each grant or loan.
c. For any period which the council may approve, the commissioner may assist affordable housing programs which are not located in municipalities whose housing elements have been granted substantive certification or which are not in furtherance of a regional contribution agreement; provided that the affordable housing program will meet all or part of a municipal low and moderate income housing obligation.
d. Amounts deposited in the "New Jersey Affordable Housing Trust Fund" shall be targeted to regions based on the region's percentage of the State's low and moderate income housing need as determined by the council. Amounts in the fund shall be applied for the following purposes in designated neighborhoods:
(1) Rehabilitation of substandard housing units occupied or to be occupied by low and moderate income households;
(2) Creation of accessory [apartments] dwelling units to be occupied by low and moderate income households;
(3) Conversion of non-residential space to residential purposes; provided a substantial percentage of the resulting housing units are to be occupied by low and moderate income households;
(4) Acquisition of real property, demolition and removal of buildings, or construction of new housing that will be occupied by low and moderate income households, or any combination thereof;
(5) Grants of assistance to eligible municipalities for costs of necessary studies, surveys, plans, and permits; engineering, architectural, and other technical services; costs of land acquisition and any buildings thereon; and costs of site preparation, demolition, and infrastructure development for projects undertaken pursuant to an approved regional contribution agreement;
(6) Assistance to a local housing authority, nonprofit or limited dividend housing corporation, or association or a qualified entity acting as a receiver under P.L.2003, c.295 (C.2A:42-114 et al.) for rehabilitation or restoration of housing units which it administers which: (a) are unusable or in a serious state of disrepair; (b) can be restored in an economically feasible and sound manner; and (c) can be retained in a safe, decent, and sanitary manner, upon completion of rehabilitation or restoration; and
(7) Other housing programs for low and moderate income housing, including, without limitation, (a) infrastructure projects directly facilitating the construction of low and moderate income housing not to exceed a reasonable percentage of the construction costs of the low and moderate income housing to be provided and (b) alteration of dwelling units occupied or to be occupied by households of low or moderate income and the common areas of the premises in which they are located in order to make them accessible to persons with disabilities.
e. Any grant or loan agreement entered into pursuant to this section shall incorporate contractual guarantees and procedures by which the division will ensure that any unit of housing provided for low and moderate income households shall continue to be occupied by low and moderate income households for at least 20 years following the award of the loan or grant, except that the division may approve a guarantee for a period of less than 20 years where necessary to ensure project feasibility.
f. Notwithstanding the provisions of any other law, rule, or regulation to the contrary, in making grants or loans under this section, the department shall not require that tenants be certified as low or moderate income or that contractual guarantees or deed restrictions be in place to ensure continued low and moderate income occupancy as a condition of providing housing assistance from any program administered by the department, when that assistance is provided for a project of moderate rehabilitation if the project: (1) contains 30 or fewer rental units; and (2) is located in a census tract in which the median household income is 60 percent or less of the median income for the housing region in which the census tract is located, as determined for a three person household by the council in accordance with the latest federal decennial census. A list of eligible census tracts shall be maintained by the department and shall be adjusted upon publication of median income figures by census tract after each federal decennial census.
g. In addition to other grants or loans awarded pursuant to this section, and without regard to any limitations on such grants or loans for any other purposes herein imposed, the commissioner shall annually allocate such amounts as may be necessary in the commissioner's discretion, and in accordance with section 3 of P.L.2004, c.140 (C.52:27D-287.3), to fund rental assistance grants under the program created pursuant to P.L.2004, c.140 (C.52:27D-287.1 et al.). Such rental assistance grants shall be deemed necessary and authorized pursuant to P.L.1985, c.222 (C.52:27D-301 et al.), in order to meet the housing needs of certain low income households who may not be eligible to occupy other housing produced pursuant to P.L.1985, c.222 (C.52:27D-301 et al.).
h. The department and the State Treasurer shall submit the "New Jersey Affordable Housing Trust Fund" for an audit annually by the State Auditor or State Comptroller, at the discretion of the Treasurer. In addition, the department shall prepare an annual report for each fiscal year, and submit it by November 30th of each year to the Governor and the Legislature, and the Joint Committee on Housing Affordability, or its successor, and post the information to its web site, of all activity of the fund, including details of the grants and loans by number of units, number and income ranges of recipients of grants or loans, location of the housing renovated or constructed using monies from the fund, the number of units upon which affordability controls were placed, and the length of those controls. The report also shall include details pertaining to those monies allocated from the fund for use by the State rental assistance program pursuant to section 3 of P.L.2004, c.140 (C.52:27D-287.3) and subsection g. of this section.
i. The commissioner may award or grant the amount of any appropriation deposited in the "New Jersey Affordable Housing Trust Fund" pursuant to section 41 of P.L.2009, c.90 (C.52:27D-320.1) to municipalities pursuant to the provisions of section 39 of P.L.2009, c.90 (C.40:55D-8.8).
(cf: P.L. 2017, c.131, s.200)
12. This act shall take effect immediately.
STATEMENT
This bill would authorize owners of property zoned for single-family or two-family residential use to develop an accessory dwelling unit (ADU) on their property consistent with Statewide standards for the development of ADUs. The bill would permit each municipality to adopt or amend its land use regulations to be consistent with the bill's Statewide standards.
Under the bill, a municipality may authorize a person to develop one or more ADUs on a lot owned by the person and located within a zone in which a single- or two-family dwelling is permitted under the municipal land use regulations. While allowing a municipality to impose some exceptions in adopting its land use regulations regarding the development of ADUs, the bill would require municipal land use regulations to provide that an ADU is a permitted use as of right on a lot if a primary dwelling exists or is being proposed on the lot, and the lot is located within a zone in which a single-family dwelling or a two-family dwelling is permitted under the municipal land use regulations.
The bill defines ADU as a residential dwelling unit that provides complete independent living facilities for one or more persons, and is either: located within a proposed or existing primary dwelling; located within a proposed or existing accessory structure; constructed in whole or part as an extension to a proposed or existing primary dwelling; or constructed as a separate detached structure on the same lot as the existing or proposed primary dwelling.
The bill would require a municipality's land use regulations to provide that:
· an ADU may be either located within or attached to the proposed or existing primary dwelling or to a proposed or existing garage or other accessory structure, or detached from the proposed or existing primary dwelling but located on the same lot as the proposed or existing primary dwelling. A municipality would be prohibited from requiring installation of a passageway between a primary dwelling and a detached accessory structure;
· an ADU may be rented separately from the primary dwelling, but is prohibited from being sold or otherwise conveyed separately from the primary dwelling; and
· a municipality is prohibited from requiring an applicant to seek approval to develop an ADU, either simultaneously with or separately from the development of a primary dwelling.
The bill would require municipal land use regulations concerning ADUs to comply with the following standards:
· a minimum floor area requirement of no greater than 300 square feet;
· a maximum floor area requirement of no smaller than 1,200 square feet;
· a maximum height requirement of no less than 20 feet;
· no requirement to install fire sprinklers in an ADU if there is no requirement to install fire sprinklers in the primary dwelling;
· no setback requirements for an ADU that is located within an existing structure or a structure constructed in the same location and to the same dimensions as an existing structure being converted to an ADU;
· no more than a five-foot sideyard and rearyard setback requirement for any other ADU;
· an ADU must provide direct exterior access separate from the direct exterior access from the primary dwelling;
· no parking requirement for an ADU in excess of one parking space per ADU, which may be provided as tandem parking; and
· no requirement to replace an offstreet parking space being removed in conjunction with the construction of, or conversion to, an ADU.
If a municipality's land use regulations do not comply with the above requirements, the regulations would be void and unenforceable.
The bill sets forth the following specific circumstances under which a municipal agency may deny an application to develop an ADU:
· the proposed site is located within an area in which there exists insufficient public sewer or water service, and within which there exists severe constraints on the use of wells and septic tanks, which render the addition of a dwelling unit hazardous to the public health; or
· the proposed site is located on a lot so small that an 800 square foot structure cannot be reasonably accommodated without violating the bill's minimum sideyard or rearyard setback requirements.
The bill would allow a municipality's land use regulations to:
· establish reasonable landscaping standards for detached ADUs;
· impose architectural review requirements for an application proposing to develop an ADU within an area designated as a historic district, if the proposed development requires either new construction or exterior modification of an existing structure;
· reduce or eliminate off-street parking requirements imposed upon the development of an ADU otherwise applicable under municipal land use regulation or Statewide site improvement standards;
· provide that a municipal agency shall not approve an application to develop an ADU on a parcel of property unless the applicant is the owner-occupant of an existing or proposed primary dwelling on the property;
· provide that an ADU is prohibited from being rented for a period of less than 30 days;
· provide that an ADU is a permitted use in additional zoning districts; and
· limit the maximum size of an ADU constructed separately from the primary dwelling to that square footage that is not in excess of 60 percent of the lot's buildable area, as defined in the bill.
The bill provides that an application to develop an ADU is to be considered and approved ministerially, without public hearing, and without review beyond that necessary to determine compliance with the provisions of the bill or municipal land use regulations adopted consistent with the bill. The bill would allow a municipal agency to charge a reasonable fee to cover the costs associated with reviewing and approving an application to develop an accessory dwelling unit.
The bill requires a municipal agency to provide an applicant with its decision on an application to develop an ADU within 60 days of the date the applicant submits a complete application. Unless the applicant agrees to toll this 60-day time period, if the municipal agency does not act upon the application within the 60-day time period, the application is to be deemed approved.
If an application to develop an ADU is submitted together with an application to develop a new single-family dwelling on the same lot, upon the applicant's request, the appropriate municipal agency is to consider and act upon both applications as a single application. The bill would prohibit a municipal agency from imposing conditions, beyond those necessary to comply with the provisions of the bill, upon the approval of an application to develop an ADU, if the application is submitted together with an application to develop a new single-family dwelling on the same lot.
Additionally, the bill would prohibit a municipality from:
· interpreting and applying a provision of any other municipal ordinance, policy, or regulation so to delay or deny approval of an application to develop an ADU.
· conditioning approval of an application to develop an ADU upon the correction of a nonconforming zoning condition.
· requiring, for an application to develop an ADU within an existing primary dwelling or as an extension onto an existing primary dwelling, the installation of a new or separate utility connection directly between the ADU and the utility, or imposition of a related connection fee or capacity charge, unless the ADU is being constructed together with a new single-family dwelling.
If an application is submitted to develop an ADU as a separate structure, not part of an existing primary dwelling, a municipal agency may require the applicant to install a new or separate utility connection directly between the ADU and the utility, subject to a connection fee or capacity charge of no more than half the fee charged for a new primary dwelling, which fee shall not exceed the reasonable cost of providing this service.
The bill would not supersede provisions of the State Uniform Construction Code applicable to the construction of ADUs, however, the bill specifies that the provisions of the Rehabilitation Subcode of the State Uniform Construction Code is to apply to the construction of an ADU within an existing primary dwelling. Additionally, the bill would prohibit issuance of a certificate of occupancy for an ADU under the State Uniform Construction Code prior to issuance of a certificate of occupancy for the primary dwelling.
The bill would require a municipality to submit land use regulations it adopts concerning ADUs to the Department of Community Affairs within 60 days of the date of adoption of the municipal land use regulations. The department would review the municipal land use regulations concerning ADUs and notify the municipality within 60 days of the date the department receives a municipality's regulations of any provision in the regulations that does not comply with the bill's provisions. Under the bill, if the department does not notify a municipality, within 60 days of the date the department receives a municipality's land use regulations concerning ADUs, that a provision of the municipal land use regulations does not comply with the bill's provisions, the regulations are to be deemed approved.
Within 90 days of the date a municipality receives notice of the department's determination that a provision of the municipality's land use regulations does not comply with the provisions of this bill, the municipality shall either:
amend its regulations to conform them with the provisions and intent of the bill; or
respond to the department by: asking it to approve the municipal regulations, and explaining the municipality's reasons why its regulations do not comply with the provisions and intent of this bill.
In the case of the latter, the department would review the municipality's response, consider the specific conditions affecting that municipality, as well as the intent of this bill, and notify the municipality either:
that the municipality may retain all or some part of its land use regulations; or
that the municipality is required to amend provisions of its land use regulations to be consistent with the provisions and intent of the bill.
Within 60 days of the date of receipt of the department's notice requiring it to amend its land use regulations to be consistent with the provisions and intent of the bill, the municipality is required to amend its regulations.
If a municipality does not approve an application to develop an ADU, or imposes conditions on an approval of an application to develop an ADU, the applicant may appeal the decision to the Commissioner of Community Affairs. If the commissioner determines that the municipality's reasons for withholding approval or imposing conditions are inconsistent with the bill's provisions, the commissioner is required to approve the application, and levy the cost of the proceedings, including the applicant's legal expenses, if any, against the municipality.
The bill also amends the law governing associations formed for the management of common elements and facilities of a planned real estate development to prohibit the adoption or enforcement of a restriction, covenant, bylaw, rule, regulation, master deed provision, or governing document provision that prohibits or unreasonably restricts the development or use of an ADU on a lot zoned for single-family residential use if the proposed ADU is consistent with the bill's requirements. Under the bill, any provisions of a planned real estate development's governing documents that either prohibit or unreasonably restrict the development or use of an ADU on a lot zoned for single-family or two-family residential use is void and unenforceable if the proposed ADU is consistent with the requirements of the bill. However, the bill specifically authorizes an association to impose design or landscaping conditions on the development of an ADU if the conditions: are not in excess of conditions generally imposed within the planned real estate development; do not unreasonably increase the cost to construct, effectively prohibit the construction of, or extinguish the ability to otherwise construct, an ADU consistent with the provisions of the bill.
The bill would also amend the "Fair Housing Act," N.J.S.A.52:27D-301 et al., to require a municipality's master plan housing element to include a plan to promote the creation of ADUs that will be offered at affordable rent for low- and moderate-income households, and to clarify that amounts deposited in the "New Jersey Affordable Housing Trust Fund" may be applied for the purpose of creating ADUs to be occupied by low- and moderate-income households.
