What is a subdivision?
Pursuant to Section 7 of the Municipal Land Use Law, a subdivision is defined as follows:
“Subdivision” means the division of a lot, tract or parcel of land into two or more lots, tracts, parcels or other divisions of land for sale or development. The following shall not be considered subdivisions within the meaning of this act, if no new streets are created: (1) divisions of land found by the planning board or subdivision committee thereof appointed by the chairman to be for agricultural purposes where all resulting parcels are 5 acres or larger in size, (2) divisions of property by testamentary or intestate provisions, (3) divisions of property upon court order, including but not limited to judgments of foreclosure, (4) consolidation of existing lots by deed or other recorded instrument and (5) the conveyance of one or more adjoining lots, tracts or parcels of land, owned by the same person or persons and all of which are found and certified by the administrative officer to conform to the requirements of the municipal development regulations and are shown and designated as separate lots, tracts or parcels on the tax map or atlas of the municipality. The term “subdivision” shall also include the term “resubdivision.”
There are minor subdivisions and major subdivisions. A “Major subdivision” means any subdivision not classified as a minor subdivision. A “Minor subdivision” means a subdivision of land for the creation of a number of lots specifically permitted by ordinance as a minor subdivision; provided that such subdivision does not involve (1) a planned development, (2) any new street or (3) the extension of any off-tract improvement, the cost of which is to be prorated pursuant to section 30 of P.L.1975, c.291 (C.40:55D-42).
There are also preliminary and final major subdivision approvals. Preliminary subdivision approval provides the developer with a three year period of protection during which the developer is protected against any ordinance changes that could impact the project. Final subdivision provides a two year period of protection. Applicants can seek extensions of the period of protection, but are generally limited to two one-year extensions. However, there are certain provisions of Section 49 of the Municipal Land Use Law that allow for additional extensions where the subdivision involves an area of 50 acres or more provided the Board considers (1) the number of dwelling units and nonresidential floor area involved, (2) the potential number of dwelling units and nonresidential floor area of the section or sections awaiting final approval, (3) economic conditions, and (4) the comprehensiveness of the development. The extended period of protection is also available to developments consisting of 150,000 square feet of nonresidential space or 100 residential units, or a combination thereof.
Of note, if an Applicant seeks an extension of the period of protection beyond five years, the Applicant must provide notice pursuant to Section 12 of the Municipal Land Use Law. Typically, if an Applicant meets all of the provisions of the applicable ordinance, they are entitled to subdivision approval. However, there are certain types of lots that are generally prohibited such as “flag” lots or lots that have a long “staff” leading up to a wider “flag.” Undersized lots, or lots that do not meet the minimum lot area requirements are also disfavored. Notwithstanding, denial of a site plan application must generally be based on specific failures to meet stated subdivision or ordinance standards.
Whether you have questions or concerns about easements, rezoning, or any other land use matters, one of the experienced Summit land use lawyers at Dempsey, Dempsey & Sheehan can speak with you today.
