N.J. Admin. Code § 2:77-3.1

Current through Register Vol. 56, No. 24, December 18, 2024

Section 2:77-3.1 - Board's review of ordinance and determination of viability

(a) Prior to purchasing development potential, providing matching funds for the purchase of development potential, or guaranteeing loans in a municipality that has adopted a development transfer ordinance, the Board shall determine whether the ordinance is viable.

(b) To be deemed a viable development transfer ordinance pursuant to this subchapter, the Board must find that:

1. The municipality has complied with N.J.S.A. 40:55D-113 et seq. or N.J.S.A. 40:55D-137 et seq. and any rules promulgated thereunder. Compliance shall be determined upon a showing that the municipality has:

i. Received approvals from the State Planning Commission required by N.J.S.A. 40:55D-137 et seq. and any rules promulgated thereunder, if applicable;

ii. Received certification by the Pinelands Commission pursuant to N.J.S.A. 40:55D-120 or 40:55D-142, if applicable;

iii. Received recommendation of adoption of ordinance by the respective county planning board pursuant to N.J.S.A. 40:55D-121 or 40:55D-149 or approval of Office of Planning Advocacy pursuant to N.J.S.A. 40:55D-121 or 40:55D-150 through 152 and provided a statement as to whether such approval has been appealed; and

iv. Submitted information to the respective county agriculture development board pursuant to N.J.S.A. 40:55D-120 or 40:55D-149;

2. The ordinance requires the instrument of transfer to include the following:

i. Restrictions that are consistent with the intended preservation purpose;

ii. A provision stating the restrictions are enforceable by the municipality and the county in which the property is located, any interested party, and the State agency responsible for enforcing the restrictions; and

iii. A provision stating the restrictions are enforceable by the Board if the landowner sells development potential to, or has loans guaranteed by, the Board;

3. The ordinance contains the following provisions:

i. Landowners selling development potential shall establish that they have clear, valid, record title, marketable and insurable at regular rates by a title company authorized to do business in New Jersey, at the time of enrollment of the land in the TDR program;

ii. No person shall purchase or otherwise acquire, encumber, or utilize any development potential without recording that fact, within 10 business days thereof, with the Board;

4. The ordinance is consistent with the State Highway Access Code, N.J.A.C. 16:47, including, but not limited to, Desirable Typical Sections (DTS), as set forth in Appendix B thereto;

5. The municipality has received approval of its initial petition for endorsement of its master plan, including the development transfer ordinance, or approval of the development transfer ordinance as an amendment to a previously approved petition for master plan endorsement, by the State Planning Commission, as required by N.J.S.A. 40:55D-140e, if applicable; and

6. The municipality has adopted a right-to-farm ordinance that is consistent with, or provides greater protections to commercial farm operators and owners than, the Right to Farm Act, N.J.S.A. 4:1C-1 et seq., as determined by the State Agriculture Development Committee, if the TDR program intends to preserve land for agriculture.

(c) The Board shall review restrictions imposed by the ordinance or contained in an instrument of transfer to determine if they are consistent with the intended purpose for which the property is being restricted prior to purchasing development potential or providing a loan guarantee.

N.J. Admin. Code § 2:77-3.1

Amended by R.2013 d.139, effective 12/16/2013.
See: 45 N.J.R. 495(a), 45 N.J.R. 2541(a).
In the introductory paragraph of (b)1, inserted "40:55D-113 et seq. or", and deleted "or regulations" following "rules"; in (b)1i, inserted ", if applicable"; in (b)1ii and (b)1iv, inserted "40:55D-120 or"; and in (b)1iii, inserted "40:55D-121 or" twice, and substituted "Planning Advocacy" for "Smart Growth"; in (b)2iii; substituted a semicolon for a period at the end; in (b)3ii, deleted "and" from the end; and in (b)5, inserted ", if applicable".