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Subdivision Law – How to Subdivide a Single Large Lot Into Multiple Lots

There are a number of reasons a property owner may want to subdivide a property. A developer may find an opportunity to turn one large lot into multiple smaller ones. A property owner who owned two properties next to one another under the same name could find that they were involuntarily administratively merged by the tax assessor under the Loechner v. Campoli doctrine, and now they must be re-subdivided to allow a sale or refinance. The executor or administrator of an estate, or even a Chancery Court judge, could find that a partition in fact of a property is the best or only way to comply with a will or resolve a dispute. Whatever the reason, there is a legal process that must be complied with in order for the County to accept the recording of the subdivision and allowing for the transfer of clear title to future owners of the new lots.

First things first – will the newly created lots be conforming or is a variance needed? The first consideration is whether the subdivision will conform with the local zoning ordinances. Most municipalities have minimum lot size and dimension requirements that must be met for a subdivision to be allowed. For example the R-districts of Jersey City require a minimum 25′ X 100′ lot size, while in Bayonne that requirement is generally 30′ X 100′ in residential zones. If the proposed subdivision conforms with these requirements, creating “conforming” lots, then the subdivision must be approved “as of right”.  If not, then a variance will be required from the local Zoning or Planning Board (depending on the circumstances) before the subdivision can be approved. A variance means that the municipality does not have to approve the proposed subdivision. There are a number of factors that a Board will consider in whether to grant the variance or not, and each Board has its own nuances and local circumstances. For example, the 30′ X 100′ lot size requirement in Bayonne was instituted more than half a century after nearly the entire City was already laid out in 25′ X 100′ lots. So although a variance would be required to subdivide an existing 50′ X 100′ lot into two buildable lots, and the Board generally does not have to grant a variance in those circumstances and will not always do so, such variances are in practice routinely granted.

Is it a minor or major subdivision? Municipal ordinances will determine whether a subdivision is major or minor. A minor subdivision can be filed by “deed” or “plat” per NJSA 40:55D-47 and must be recorded within 190 days of Board approval. Minor subdivisions are usually filed by deed since that is a much cheaper and easier way of doing things. A major subdivision can only be filed by plat (sometimes referred to as “mylars”) per NJSA 40:55D-54 and it must be recorded within 95 days of the Municipal Board’s signature of the plat. The plat must also be “certified” by the County Planning Board per NJSA 40:27-6.5. So there is much more red tape to deal with, and less time to do it in, when filing a major subdivision than a minor one.

Should the proposed subdivision be filed with the municipal Planning Board, municipal Zoning Board, municipal Sub-committee and/or County Planning Board? With very few (and rare) exceptions, all subdivisions must be approved by the governmental agency having jurisdiction. The vast majority of subdivisions are properly filed at the municipal Planning Board. In some cases where the non-conformities are so extreme that a D variance is required (rather than C variances), a municipal Zoning Board may be involved. Some municipalities have sub-committees which will approve minor subdivisions when the proposed lots are conforming, but only if such sub-committees are established by ordinance and they can only approve minor subdivisions where no variances are needed. Although it is not always enforced by municipal Planning Boards for minor subdivisions, technically the County Planning Board is also supposed to review all subdivisions and provide a report within 30 days to the Municipal Agency hearing the subdivision application per NJSA 40:27-6.3. Unless the property is on a County Road, the County Planning Board’s report is really for the Board’s consideration/advice only and its scope of review is also somewhat limited by NJSA 40:27-6.2. The County Planning Board’s failure to provide the report within 30 days is automatically deemed an approval by the County.

Making it official. Once the approvals are obtained the subdivision must be recorded by plat or deed within either 95 or 190 days respectively, as discussed above.  If a minor subdivision, a copy of the subdivision deed being recorded must also be served on the municipal engineer and tax assessor per NJSA 4:55D-47. Sometimes the approvals will require other documents to be recorded along with the subdivision such as deed restrictions.

Other considerations.  When subdividing properties that will retain party walls or shared driveways, or require access rights to one another, the recording of mutual maintenance/access easements along with the subdivision is a very good idea to prevent disputes in the future. Doing so increases the marketability of the newly created lots and protects the subdividing owner if he/she is keeping one of the subdivided lots. Even where the owner intends to sell both lots, recording a sensible access/maintenance easement in some circumstances can help him or her getting dragged into future litigation as a witness or worse. Also be aware that certain types of access easements can be created as a matter of law when an owner sub-divides a property, whether they are written and intentional or not. Finally an owner should be aware that property insurance must be updated before the subdivision is recorded, and obviously a new tax assessment will be issued for each lot after it is recorded (usually an increase of some sort on net).

 

2023-07-24T16:56:07+00:00
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