N.J. Admin. Code § 2:76-6.17

Current through Register Vol. 56, No. 19, October 7, 2024

Section 2:76-6.17 - Residual dwelling site opportunity

(a) Upon a landowner's request, residual dwelling site opportunities may be allocated to the premises by the board only under the following conditions:

1. The overall gross density shall not exceed one residential unit per 100 acres. The board shall decrease the allocation in consideration of the following conditions:

i. Existing residential buildings on the premises;

ii. Proposed residential building(s) which have received preliminary and/or final approval from the municipality but have not yet been constructed; and

iii. In no case shall the overall density of residual dwelling site opportunities, existing residential buildings and proposed residential buildings exceed one unit per 100 acres.

2. The board may decrease the allocation in consideration of the following conditions:

i. Exceptions of parcels of land from a tax block and lot contained in the application to sell a development easement or a tax block and lot adjacent to the application which is under the same record ownership as the landowner; and

ii. Other factors which the board deems appropriate.

(b) At the landowner's option, the allocation of residual dwelling site opportunities may be reduced at any time prior to the sale of the development easement.

(c) The following restriction shall be attached to and recorded with the deed of the land and shall run with the land to identify the number of residual dwelling site opportunities allocated to the premises:

(...) residual dwelling site opportunities have been allocated to the Premises pursuant to the provisions of 2:76-6.1 7, "Residual Dwelling Site Opportunity". The Grantor's request to exercise a residual dwelling site opportunity shall comply with the rules promulgated by the Committee in effect at the time the request is initiated.

In the event a division of the Premises occurs in compliance with deed restriction No. 15 below, the Grantor shall prepare or cause to be prepared a Corrective Deed of Easement reflecting the reallocation of the residual dwelling site opportunities to the respective divided lots. The Corrective Deed shall be recorded with the County Clerk. A copy of the recorded Corrective Deed shall be provided to the Grantee and Committee.

In the event a residual dwelling site opportunity has been approved by the Grantee, the Grantor shall prepare or cause to be prepared a Corrective Deed of Easement at the time of Grantee's approval. The Corrective Deed shall reflect the reduction of residual dwelling site opportunities allocated to the Premises. The Corrective Deed shall be recorded with the County Clerk. A copy of the recorded Corrective Deed shall be provided to the Grantee and Committee.

For purposes of this Deed of Easement:

"Residual dwelling site opportunity" means the potential to construct a residential unit and other appurtenant structures on the Premises in accordance with 2:76-6.1 7.

"Residual dwelling site" means the location of the residential unit and other appurtenant structures.

"Residential unit" means the residential building to be used for single family residential housing and its appurtenant uses. The construction and use of the residential unit shall be for agricultural purposes.

(d) Nothing in this section shall be construed to mandate the board to allocate a residual dwelling site opportunity to the premises.

(e) A request to exercise an RDSO shall be conducted in the following manner:

1. If a landowner or contract purchaser intends to exercise a residual dwelling site opportunity subsequent to the purchase of a development easement, an application shall be submitted to the board. If a contract purchaser submits the request, the record owner shall also endorse the application.

2. The application shall contain the information required by the board.

3. Upon receipt of the application the board shall forward a copy of the application to the municipal governing body for advisory comments. The governing body may submit comments, if any, concerning the application to the board within 35 days of the receipt of the application.

4. Upon receipt of the application the board shall forward a copy of the application to the Committee.

5. The Committee may submit comments, if any, concerning the application to the board within 35 days of its receipt.

6. The Committee's failure to submit any comments shall not be construed as recommending approval or denial of the application.

7. Upon the expiration of the 35-day committee comment period, the board may review the application to exercise an RDSO.

8. The residual dwelling site opportunity may only be exercised if the board determines that the construction and use of the residential unit is for agricultural purposes and that the location of the residual dwelling site minimizes any adverse impact on the agricultural operation.

9. Upon the board's finding that the construction and use of the proposed residential unit is for agricultural purposes and that the residual dwelling site minimizes any adverse impact on the agricultural operation, the board shall condition its approval of the exercising of the residual dwelling site opportunity on the landowner or contract purchaser securing a building permit, to ensure that the construction of the residential unit is in compliance with all municipal ordinances.

10. The board's approval to exercise a residual dwelling site opportunity shall be valid for a period of three years from the date of approval. Extensions may be granted by the board for additional periods for at least one year but not to exceed a total extension of two years.

(f) Documentation of the status of an allocated residual dwelling site opportunity shall be as follows:

1. In the event a division of the premises occurs in compliance with 2:76-6.1 5(a)15, the landowner shall prepare or cause to be prepared a Corrective Deed of Easement reflecting the reallocation of the residual dwelling site opportunities to the respective divided lots. The Corrective Deed shall be recorded with the county clerk. A copy of the recorded Corrective Deed shall be provided to the board and Committee; and

2. In the event a residual dwelling site opportunity has been approved by the board, the landowner shall prepare or cause to be prepared a Corrective Deed of Easement at the time of the board's approval. The Corrective Deed shall reflect the reduction of residual dwelling site opportunities allocated to the premises. The Corrective Deed shall be recorded with the county clerk. A copy of the recorded Corrective Deed shall be provided to the board and Committee.

(g) A person who was, but is no longer, regularly engaged in common farmsite activities on the premises may continue living in a residential unit only if he or she has:

1. Retired from farming, as long as he or she was regularly engaged in common farmsite activities on the premises for at least five years while residing in the residential unit; or

2. Suffered a disability and can no longer engage in farming as a result of the disability.

(h) Upon the death of a person who was regularly engaged in common farmsite activities on the premises (farmer occupant), the farmer occupant's spouse, domestic partner registered pursuant to 26:8A-1 et seq. (domestic partner), and children may continue residing in the residential unit subject to the following conditions:

1. The farmer occupant's spouse, domestic partner, or children must have been residing in the residential unit at the time of the farmer occupant's death;

2. A child who was claimed as a dependent on the farmer occupant's most recent Federal income tax return filed before his or her death may continue residing in the house as long as his or her status as a dependent for Federal income tax purposes is maintained.

i. Upon losing his or her status as a dependent for Federal income tax purposes, the child may continue residing in the residential unit as long as the farmer occupant's spouse or domestic partner resides there. If the farmer occupant's spouse or domestic partner no longer lives in the residential unit, the child shall:

(1) Vacate the residential unit; or

(2) Become regularly engaged in common farmsite activities on the premises;

3. A child who was not claimed as a dependent on the farmer occupant's most recent Federal income tax return filed before his or her death may continue residing in the residential unit as long as the farmer occupant's spouse or domestic partner continues to reside in the residential unit. If the farmer occupant's spouse or domestic partner no longer resides in the residential unit, the child shall:

i. Vacate the residential unit; or

ii. Become regularly engaged in common farmsite activities on the premises; and

4. Other family members not addressed in this subsection above, including but not limited to, a parent or sibling of the farmer occupant, may reside in the residential unit only with the joint approval of the board and committee (or with the sole approval of the committee if the committee owns the development easement). When considering requests, the board and committee shall consider the financial and health status of the family member and serious hardships that may warrant the family member to live in the residential unit.

N.J. Admin. Code § 2:76-6.17

New Rule, R.1989 d.49, effective 1/17/1989.
See: 20 N.J.R. 1761(a), 21 N.J.R. 158(a).
Amended by R.1990 d.529, effective 11/5/1990.
See: 22 N.J.R. 1244(a), 22 N.J.R. 3359(a).
Corrected internal cite and added language.
Repeal and New Rule, R.1993 d.392, effective 8/2/1993.
See: 25 N.J.R. 1804(d), 25 N.J.R. 3453(e).
Amended by R.1994 d.393, effective 8/1/1994.
See: 26 N.J.R. 1419(a), 26 N.J.R. 3159(b).
Amended by R.1995 d.613, effective 12/4/1995.
See: 27 N.J.R. 13(a), 27 N.J.R. 4875(a).
Amended by R.2006 d.387, effective 11/6/2006.
See: 38 N.J.R. 2244(a), 38 N.J.R. 4689(a).
Added (g) and (h).