[Adopted by the Mayor and Council of the Borough of Kinnelon
8-18-2016 by Ord. No. 12-16. Amendments noted where applicable.]
GENERAL REFERENCES
Littering and property maintenance — See Ch. 141.
As used in this chapter, the following terms shall have the
meanings indicated:
Any property that is determined to be abandoned pursuant to N.J.S.A. 55: 19-78 et seq., which is set forth in § 142-8 of this chapter.
The Zoning Officer of the Borough of Kinnelon.
A.
The Borough of Kinnelon may direct the public officer to identify
abandoned property for the purpose of establishing an abandoned property
list throughout the Borough. Each item of abandoned property so identified
shall include the tax block and lot number, the name of the owner
of record, if known, and the street address of the lot.
B.
The public officer shall establish and maintain a list of abandoned
property, to be known as the "abandoned property list." The Borough
of Kinnelon may add properties to the abandoned property list at any
time, and may delete properties at any time when the public officer
finds that the property no longer meets the definition of an abandoned
property. An interested party may request that a property be included
on the abandoned property list following that procedure set forth
in N.J.S.A. 55:19-105.
(1)
An abandoned property shall not be included on the abandoned property
list if rehabilitation is being performed in a timely manner, as evidenced
by building permits issued and diligent pursuit of rehabilitation
work authorized by those permits. A property on which an entity other
than the Borough of Kinnelon has purchased or taken assignment from
the Borough of a tax sale certificate which has been placed on the
abandoned property list may be removed in accordance with the provisions
of N.J.S.A. 55:19-103.
C.
Publication and notification of list.
(1)
The public officer shall establish the abandoned property list or
any additions thereto by publication in the official newspaper of
the Borough of Kinnelon, which publication shall constitute public
notice, and, within 10 days after publication, shall send a notice,
by certified mail, return receipt requested, and by regular mail,
to the owner of record of every property included on the list. The
published and mailed notices shall identify property determined to
be abandoned setting forth the owner of record, if known, the tax
lot and block number and street address. The public officer, in consultation
with the Tax Collector, shall also send out a notice by regular mail
to any mortgagee, servicing organization, or property tax processing
organization that receives a duplicate copy of the tax bill pursuant
to N.J.S.A. 54:4-64. When the owner of record is not known for a particular
property and cannot be ascertained by the exercise of reasonable diligence
by the Tax Collector, notice shall not be mailed but instead shall
be posted on the property in the manner as provided in N.J.S.A. 40:48-2.7.
The mailed notice shall indicate the factual basis for the public
officer's finding that the property is abandoned property as
that term is defined in N.J.S.A. 55:19-54 and the rules and regulations
promulgated thereunder, specifying the information relied upon in
making such finding. In all cases a copy of the mailed or posted notice
shall also be filed by the public officer in the office of the Morris
County Clerk. This filing shall have the same force and effect as
a notice of lis pendens under N.J.S.A. 2A:15-6. The notice shall be
indexed by the name of the property owner as defendant and the name
of the Borough as plaintiff, as though an action had been commenced
by the Borough against the owner.
(2)
The public officer, within 10 days of the establishment of the abandoned
property list, or any additions thereto, shall send, by regular mail,
facsimile or electronic mail, a copy of the abandoned property list
to the electric and gas utilities serving the Borough.
D.
An owner or lienholder may challenge the inclusion of his property on the abandoned property list determined pursuant to Subsection B of this section by appealing that determination to the public officer within 30 days of the owner's receipt of the certified notice or 40 days from the date upon which the notice was sent. An owner whose identity was not known to the public officer shall have 40 days from the date upon which notice was published or posted, whichever is later, to challenge the inclusion of a property on the abandoned property list. For good cause shown, the public officer shall accept a late filing of an appeal. Within 30 days of receipt of a request for an appeal of the findings contained in the notice pursuant to Subsection D of this section, the public officer shall schedule a hearing for redetermination of the matter. Any property included on the list shall be presumed to be abandoned property unless the owner, through the submission of an affidavit or certification by the property owner averring that the property is not abandoned and stating the reasons for such averment, can demonstrate that the property was erroneously included on the list. The affidavit or certification shall be accompanied by supporting documentation; such as but not limited to photographs, repair invoices, bills and construction contracts. The sole ground for appeal shall be that the property in question is not abandoned property as that term is defined in N.J.S.A. 55:19-54. The public officer shall decide any timely filed appeal within 10 days of the hearing on the appeal and shall promptly, by certified mail, return receipt requested, and by regular mail, notify the property owner of the decision and the reasons therefor.
E.
The property owner may challenge an adverse determination of an appeal with the public officer pursuant to Subsection D of this section, by instituting, in accordance with the New Jersey Court Rules, a summary proceeding in the Superior Court, Law Division, Morris County, which action shall be tried de novo. Such action shall be instituted within 20 days of the date of the notice of decision mailed by the public officer pursuant to Subsection D of this section. The sole ground for appeal shall be that the property in question is not abandoned property as that term is defined in N.J.S.A. 55:19-54. The failure to institute an action of appeal on a timely basis shall constitute a jurisdictional bar to challenging the adverse determination, except that, for good cause shown, the court may extend the deadline for instituting the action.
F.
The public officer shall promptly remove any property from the abandoned
property list that has been determined not to be abandoned on appeal.
G.
The abandoned property list shall become effective, and the Borough
of Kinnelon shall have the right to pursue any legal remedy with respect
to properties on the abandoned property list at such time as any one
property has been placed on the list in accordance with the provisions
of this section, upon the expiration of the period for appeal with
respect to that property or upon the denial of an appeal brought by
the property owner.
A.
Notwithstanding N.J.S.A. 54:5-19 or the provisions of any other law
to the contrary, if a property is included on the abandoned property
list and the property taxes or other Borough liens due on the property
are delinquent six or more quarters as of the date of expiration of
the right to appeal inclusion on the list, or, if an appeal has been
filed, as of the date that all opportunities for appeal of inclusion
on the list have been exhausted, then the tax lien on the property
may be sold in accordance with the procedures in the "tax sale law,"
N.J.S.A. 54:5-1 et seq., on or after the 90th day following the expiration
of that time of appeal or final determination on an appeal, as appropriate.
The Borough of Kinnelon may, at its option, require that the sale
of the tax sale certificate or any subsequent assignment or transfer
of a tax sale certificate held by the Borough be subject to the express
condition that the purchaser or assignee shall be obliged to perform
and conclude any rehabilitation or repairs necessary to remove the
property from the abandoned property list pursuant to N.J.S.A. 55:19-55
and to post a bond in favor of the Borough to guarantee the rehabilitation
or repair of the property. The public officer may waive a requirement
to post a bond imposed by the Borough of Kinnelon for any purchaser,
assignee or transferee of a tax sale certificate that provides documentation
acceptable to the public officer that the purchaser, assignee or transferee
is a qualified rehabilitation entity as defined in N.J.S.A. 55:19-80.
The cost of rehabilitation and repairs and the cost of the bond shall
be added to the amount required to be paid by the owner for redemption
of the property. The purchaser, assignee or transferee of the tax
sale certificate who is required to rehabilitate and repair the property
shall be required to file the appropriate affidavits with the Tax
Collector, pursuant to N.J.S.A. 54:5-62, representing the amounts
of monies expended periodically toward the rehabilitation or repair
of the property. A purchaser, assignee or transferee shall be entitled
to interest on the amounts expended, as set forth in the affidavits,
at the delinquent rate of interest for delinquencies in excess of
$1,500 pursuant to N.J.S.A. 54:4-67 of the Borough of Kinnelon in
effect for the time period when the amounts were expended. The tax
sale certificate purchaser, assignee or transferee, under the auspices
and with the authority of the Borough of Kinnelon, shall be permitted
to enter in and upon the property for the purposes of appraising the
costs of rehabilitation and repair and to perform all other acts required
to guarantee the completion of the rehabilitation or repair of the
property. No rehabilitation or repair work shall be commenced, however,
until proof of adequate liability insurance and an indemnification
agreement holding the Borough of Kinnelon harmless is filed with the
public officer. If the tax sale certificate is not purchased at the
initial auction of the tax sale certificate and the Borough of Kinnelon
purchases the certificate pursuant to N.J.S.A. 54:5-34, then the Borough
of Kinnelon is authorized and empowered to convey and transfer to
the New Jersey Redevelopment Authority ("Authority") or any of its
subsidiaries, without receiving compensation therefor, all of its
right, title and interest in that certificate; however, any portion
of the amount paid to the Tax Collector to redeem the tax sale certificate
that represents tax or other municipal lien delinquencies and subsequent
municipal liens, including interest, shall be returned by the Tax
Collector of the Borough of Kinnelon.
B.
Entrance upon property; cost of remediation.
(1)
If the Borough of Kinnelon or the Authority or its subsidiaries acquires
the tax sale certificate for a property on the abandoned property
list, then, upon 10 days' written notice to the property owner
and any mortgagee as of the date of the filing of the lis pendens
notice under N.J.S.A. 55:19-55, that entity shall be permitted to
enter upon the property and remediate any conditions that caused the
property to be included on the abandoned property list. No remediation
shall be commenced, however, if within that ten-day period the owner
or mortgagee shall have notified the Borough of Kinnelon or its subsidiary,
as appropriate, in writing that the owner or mortgagee has elected
to perform the remediation itself. When the owner or mortgagee elects
to perform the remediation itself, it shall be required to post bond
in favor of the Borough of Kinnelon or the Authority or its subsidiaries,
as appropriate, in order to ensure performance. The amount and conditions
of the bond shall be determined by the public officer.
(2)
The cost of remediation incurred by the Borough of Kinnelon or the
Authority or its subsidiaries pursuant to this subsection, as so certified
by the entity incurring the cost upon completion of the remediation,
shall constitute a lien upon the property first in time and right
to any other lien, whether the other lien was filed prior to or after
the filing of any lien by the Borough of Kinnelon, except for Borough
taxes, liens and assessments and any lien imposed pursuant to the
Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq.,
together with any interest thereon. The certification of cost shall
be filed and recorded as a lien by the entity incurring the cost with
the Morris County Clerk.
C.
Maintenance of abandoned property.
(1)
Failure of an owner or lienholder to remove a property from the abandoned
property list within the period of time for appeal of inclusion of
the property on the list pursuant to N.J.S.A. 55:19-55 shall be prima
facie evidence of the intent of the owner to continue to maintain
the property as abandoned property.
A.
An owner may remove a property from the list of abandoned properties
prior to sale of the tax sale certificate by paying all taxes and
Borough liens due, including interest and penalties, and by:
(1)
Posting cash or a bond equal to the cost of remediating all conditions
because of which the property has been determined to be abandoned
pursuant to N.J.S.A. 55:19-55 and posting cash or a bond to cover
the cost of any environmental cleanup required on the property, evidenced
by a certification by a licensed engineer retained by the owner and
reviewed and approved by the public officer stating that the cash
or bond adequately covers the cost of the cleanup; or
(2)
Demonstrating to the satisfaction of the public officer that the
conditions rendering the property abandoned have been remediated in
full; provided, however, that where the public officer finds that
the owner is actively engaged in remediating the conditions because
of which the property was determined to be abandoned pursuant to N.J.S.A.
55:19-55, as evidenced by significant rehabilitation activity on the
property, the public officer may grant an extension of time of not
more than 120 days for the owner to complete all work, during which
time no further proceedings will be taken against the owner or the
property.
B.
If the owner has posted cash or a bond in order to have a property
removed from the abandoned property list and the conditions because
of which the property was determined to be abandoned have not been
fully remediated within one year of the date of posting the cash or
bond, or, in the case of a property which requires a remediation of
any known, suspected or threatened release of contaminants, if the
owner has failed to enter into a memorandum of agreement with the
Department of Environmental Protection or an administrative consent
order, as the case may be, or if an agreement or order is in effect
but the owner has failed to perform the remediation in conformance
with the agreement or order, then the cash or bond shall be forfeited
to the Borough which shall use the cash or bond and any interest which
has accrued thereon for the purpose of demolishing or rehabilitating
the property or performing the environmental remediation. Any funds
remaining after the property has been demolished, rehabilitated or
cleaned up shall be returned to the owner.
A.
When a person other than the Borough of Kinnelon or the Authority
or its subsidiaries acquires a tax sale certificate for a property
on the abandoned property list at tax sale, the purchaser may institute
an action to foreclose the right of redemption at any time after the
expiration of six months following the date of the sale of the tax
sale certificate.
B.
Notwithstanding N.J.S.A. 54:5-104.34, when the Borough of Kinnelon
is the purchaser at tax sale of any property on the abandoned property
list pursuant to N.J.S.A. 54:5-34, an action to foreclose the right
of redemption may be instituted in accordance with the provisions
of N.J.S.A. 54:5-77.
C.
After the foreclosure action is instituted, the right to redeem shall
exist and continue to exist until barred by the judgment of the Superior
Court; provided, however, that no redemption shall be permitted except
where the owner:
(1)
Posts cash or a bond equal to the cost of remediating the conditions
because of which the property was determined to be abandoned pursuant
to N.J.S.A. 55:19-56, as determined by the court; or
(2)
Demonstrates to the court that the conditions because of which the
property was determined to be abandoned pursuant to N.J.S.A. 55:19-56
have been remedied in full.
Once a final judgment barring the right of redemption with respect
to a property on the list of abandoned properties has been recorded,
no court shall reopen such judgment at any time except on the grounds
of lack of jurisdiction or fraud in the conduct of the action; in
any such proceeding, the provisions of N.J.S.A. 55:19-20 et seq. shall
be construed liberally in favor of the purchaser, assignee or transferee
of the tax sale certificate.
A.
Abandoned properties create a wide range of problems for the Borough
of Kinnelon, fostering criminal activity, creating public health problems
and otherwise diminishing the quality of life for residents and business
operators in those areas.
B.
Abandoned properties diminish the property values of neighboring
properties and have a negative effect on the quality of life of adjacent
property owners, increasing the risk of property damage through arson
and vandalism and discouraging neighborhood stability and revitalization.
C.
For these reasons, abandoned properties are presumptively considered
to be nuisances, in view of their negative effects on nearby properties
and the residents or users of those properties.
D.
The continued presence of abandoned properties in the Borough of
Kinnelon acts as a significant barrier to the Borough's continued
progressive development and revitalization.
E.
The responsibility of a property owner to maintain a property in
sound condition and prevent it from becoming a nuisance to others
extends to properties which are not in use and "demolition by neglect,"
leading to the deterioration and loss of the property, or failure
by an owner to comply with legitimate orders to demolish, stabilize
or otherwise repair his or her property creates a presumption that
the owner has abandoned the property.
F.
Many abandoned buildings still have potential value for residential
and other uses and such buildings should be preserved rather than
demolished when feasible, particularly buildings that have historic
or architectural value, or contribute to maintaining the character
of neighborhoods or streetscapes, or both, as the case may be.
As used in this chapter, the following terms shall have the
meanings indicated:
The New Jersey Department of Community Affairs.
Any person or entity holding a note, mortgage or other interest
secured by the building or any part thereof.
Any city, borough, town, township or village situated within
the boundaries of this state and shall include a qualified rehabilitation
entity that may be designated by the municipality pursuant to N.J.S.A.
55:19-90 to act as its agent to exercise any of the municipality's
rights pursuant thereto.
The holder or holders of title to an abandoned property.
Any building or structure and the land appurtenant thereto.
The person designated by the Borough of Kinnelon pursuant
to N.J.S.A. 40:48-2.5 or any officer of the Borough of Kinnelon qualified
to carry out the responsibilities set forth in N.J.S.A. 55:19-78 et
seq. and designated by the Mayor and Council of the Borough of Kinnelon.
An entity organized or authorized to do business under the
New Jersey statutes which shall have as one of its purposes the construction
or rehabilitation of residential or nonresidential buildings, the
provision of affordable housing, the restoration of abandoned property,
the revitalization and improvement of urban neighborhoods, or similar
purpose, and which shall be well qualified by virtue of its staff,
professional consultants, financial resources, and prior activities
set forth in N.J.S.A. 55:19-78 et seq. to carry out the rehabilitation
of vacant buildings.
Any electric or natural gas public utility that is regulated
under the jurisdiction of the Board of Public Utilities.
A.
Except as provided in N.J.S.A. 55:19-83, any property that has not
been legally occupied for a period of six months and which meets any
one of the following additional criteria may be deemed to be abandoned
property upon a determination by the public officer that:
(1)
The property is in need of rehabilitation in the reasonable judgment
of the public officer, and no rehabilitation has taken place during
that six-month period;
(2)
Construction was initiated on the property and was discontinued prior
to completion, leaving the building unsuitable for occupancy, and
no construction has taken place for at least six months as of the
date of a determination by the public officer pursuant to this section;
(3)
At least one installment of property tax remains unpaid and delinquent on that property in accordance with Chapter 4 of Title 54 of the Revised Statutes as of the date of a determination by the public officer pursuant to this section; or
(4)
The property has been determined to be a nuisance by the public officer
in accordance with N.J.S.A. 55:19-82.
B.
A property which contains both residential and nonresidential space may be considered abandoned pursuant to N.J.S.A. 55:19-78 et seq. so long as 2/3 or more of the total net square footage of the building was previously legally occupied as residential space and none of the residential space has been legally occupied for at least six months at the time of the determination of abandonment by the public officer and the property meets the criteria of either Subsection A(1) or (4) of this section.
A.
A property may be determined to be a nuisance if:
(1)
The property has been found to be unfit for human habitation, occupancy
or use pursuant to N.J.S.A. 40:48-2.3;
(2)
The condition and vacancy of the property materially increases the
risk of fire to the property and adjacent properties;
(3)
The property is subject to unauthorized entry leading to potential
health and safety hazards; the owner has failed to take reasonable
and necessary measures to secure the property; or the Borough of Kinnelon
has secured the property in order to prevent such hazards after the
owner has failed to do so;
(4)
The presence of vermin or the accumulation of debris, uncut vegetation
or physical deterioration of the structure or grounds have created
potential health and safety hazards and the owner has failed to take
reasonable and necessary measures to remove the hazards; or
(5)
The dilapidated appearance or other condition of the property materially
affects the welfare, including the economic welfare, of the residents
of the area in close proximity to the property, and the owner has
failed to take reasonable and necessary measures to remedy the conditions.
A.
If an entity other than the Borough of Kinnelon has purchased or taken assignment from the Borough of a tax sale certificate on a property that has not been legally occupied for a period of six months, that property shall not be placed on the abandoned property list pursuant to N.J.S.A. 55: 19-55 if (1) the owner of the certificate has continued to pay all Borough of Kinnelon taxes and liens on the property in the tax year when due; and (2) the owner of the certificate takes action to initiate foreclosure proceedings within six months after the property is eligible for foreclosure pursuant to either Subsection A or Subsection B of N.J.S.A. 54:5-86, as appropriate, and diligently pursues foreclosure proceedings in a timely fashion thereafter.
B.
A property which is used on a seasonal basis shall be deemed to be
abandoned only if the property meets any two of the additional criteria
set forth in N.J.S.A. 55:19-81.
C.
A determination that a property is abandoned property under the provisions
of N.J.S.A. 55:19-78 et seq. shall not constitute a finding that the
use of the property has been abandoned for purposes of municipal zoning
or land use regulation.
D.
Upon the request of a purchaser or assignee of a tax sale certificate seeking to bar the right of redemption on an abandoned property pursuant to Subsection B of N.J.S.A. 54:5-86, the public officer or the Tax Collector shall, in a timely fashion, provide the requester with a certification that the property fulfills the definition of abandoned according to the criteria set forth in N.J.S.A. 55:19-81 and 55:19-82.
A.
A summary action or otherwise to transfer possession and control
of abandoned property in need of rehabilitation to the Borough of
Kinnelon may be brought by the Borough of Kinnelon in the Superior
Court in the county in which the property is situated. If the court
shall find that the property is abandoned pursuant to N.J.S.A. 55:19-81
and the owner or party in interest has failed to submit and initiate
a rehabilitation plan, then the court may authorize the Borough of
Kinnelon to take possession and control of the property and develop
a rehabilitation plan.
B.
The Borough of Kinnelon granted possession and control may commence
and maintain those further proceedings for the conservation, protection
or disposal of the property or any part thereof that are required
to rehabilitate the property, necessary to recoup the cost and expenses
of rehabilitation and for the sale of the property; provided, however,
that the court shall not direct the sale of the property if the owner
applies to the court for reinstatement of control of the property
as provided in N.J.S.A. 55:19-92.
C.
Failure by the owner, mortgage holder or lien holder to submit plans
for rehabilitation to the Borough of Kinnelon, obtain appropriate
construction permits for rehabilitation or, in the alternative, submit
formal applications for funding the cost of rehabilitation to local,
state or federal agencies providing such funding within that six-month
period shall be deemed prima facie evidence that the owner has failed
to take any action to further the rehabilitation of the property.
A complaint filed pursuant to N.J.S.A. 55:19-84 shall include:
A.
Documentation that the property is on the Borough's abandoned
property list or a certification by the public officer that the property
is abandoned; and
B.
A statement by an individual holding appropriate professional qualifications
that there are sound reasons that the building should be rehabilitated
rather than demolished based upon the physical, aesthetic or historical
character of the building or the relationship of the building to other
buildings and lands within its immediate vicinity.
A.
Within 10 days of filing a complaint pursuant to N.J.S.A. 55: 19-78
et seq., the plaintiff shall file a notice of lis pendens with the
Morris County Clerk.
B.
At least 30 days before filing the complaint, the Borough of Kinnelon
shall serve a notice of intention to take possession of an abandoned
building. The notice shall inform the owner and interested parties
that the property has not been legally occupied for six months and
of those criteria that led to a determination of abandonment pursuant
to N.J.S.A. 55:19-81.
(1)
The notice shall provide that unless the owner or a party in interest
prepares and submits a rehabilitation plan to the appropriate Borough
of Kinnelon officials, the Borough of Kinnelon will seek to gain possession
of the building to rehabilitate the property and the associated cost
shall be a lien against the property, which may be satisfied by the
sale of the property, unless the owner applies to the court for reinstatement
of control of the property as provided in N.J.S.A. 55:19-92.
(2)
After the complaint is filed, the complaint shall be served on the
parties in interest in accordance with the New Jersey Rules of Court.
C.
After serving the notice of intent pursuant to Subsection B of this section, the Borough of Kinnelon or its designee may enter upon that property after written notice to the owner by certified mail, return receipt requested, in order to secure, stabilize or repair the property, or in order to inspect the property for purposes of preparing the plan to be submitted to the court pursuant to N.J.S.A. 55:19-89.
A.
Any owner may defend against a complaint filed pursuant to N.J.S.A.
55:19-84 by submitting a plan for the rehabilitation and reuse of
the property which is the subject of the complaint and by posting
a bond equal to 125% of the amount determined by the public officer
or the court to be the projected cost of rehabilitation.
(1)
Any plan submitted by an owner to defend against a complaint shall
be submitted within 60 days after the complaint has been filed, unless
the court provides the owner with an extension of time for good cause
shown.
B.
A plan submitted by an owner pursuant to this section shall include,
but not be limited to:
(1)
A detailed financial feasibility analysis, including documentation
of the economic feasibility of the proposed reuse, including operating
budgets or resale prices, or both, as appropriate;
(2)
A budget for the rehabilitation of the property, including sources
and uses of funds, based on the terms and conditions of realistically
available financing, including grants and loans;
(3)
A timetable for the completion of rehabilitation and reuse of the
property, including milestones for performance of major steps leading
to and encompassing the rehabilitation and reuse of the property;
and
(4)
Documentation of the qualifications of the individuals and firms
that will be engaged to carry out the planning, design, financial
packaging, construction, and marketing or rental of the property.
C.
Court approval; reports.
(1)
The court shall approve any plan that, in the judgment of the court,
is realistic and likely to result in the expeditious rehabilitation
and reuse of the property, which is the subject of the complaint.
(2)
If the court approves the owner's plan, then it may appoint
the public officer to act as monitor of the owner's compliance.
If the owner fails to carry out any step in the approved plan, then
the Borough of Kinnelon may apply to the court to have the owner's
bond forfeited, possession of the building transferred to the Borough
of Kinnelon to complete the rehabilitation plan and authorization
to use the bond proceeds for rehabilitation of the property.
(3)
The owner shall provide quarterly reports to the Borough of Kinnelon
on its activities and progress toward rehabilitation and reuse of
the property. The owner shall provide those reports to the court on
its activities that the court determines are necessary.
D.
The court may reject a plan and bond if it finds that the plan does
not represent a realistic and expeditious means of ensuring the rehabilitation
of the property or that the owner or his representatives or agents,
or both, lack the qualifications, background or other criteria necessary
to ensure that the plan will be carried out successfully.
A.
If an owner is unsuccessful in defending against a complaint filed
pursuant to N.J.S.A. 55:19-84, the mortgage holder or lien holder
may seek to be designated in possession of the property by submitting
a plan and posting a bond meeting the same conditions as set forth
in N.J.S.A. 55:19-87. The plan shall be submitted within 60 days after
the court has rejected the owner's plan, unless the court provides
the mortgage holder or lienholder with an extension of time for good
cause shown. If the court approves any such mortgage holder or lien
holder's plan, it shall designate that party to be in possession
of the property for purposes of ensuring its rehabilitation and reuse
and may appoint the public officer to act as monitor of the party's
compliance.
(1)
The mortgage holder or lien holder, as the case may be, shall provide
quarterly reports to the court and the Borough of Kinnelon on its
activities and progress toward rehabilitation and reuse of the property.
(2)
If the mortgage holder or lien holder fails to carry out any material
step in the approved plan, then the public officer shall notify the
court, which may order the bond forfeit, grant the Borough of Kinnelon
possession of the property, and authorize the Borough of Kinnelon
to use the proceeds of the bond for rehabilitation of the property.
B.
Any sums incurred or advanced for the purpose of rehabilitating the property by a mortgage holder or lien holder granted possession of a property pursuant to Subsection A of this section, including court costs and reasonable attorney's fees, may be added to the unpaid balance due that mortgage holder or lien holder, with interest calculated at the same rate set forth in the note or security agreement; or, in the case of a tax lien holder, at the statutory interest rate for subsequent liens.
A.
If no mortgage holder or lienholder meets the conditions of N.J.S.A. 55:9-88, then the Borough of Kinnelon shall submit a plan to the court which conforms with the provisions of Subsection B of N.J.S.A. 55:19-87. The plan shall designate the entity which shall implement the plan, which may be the Borough of Kinnelon or that entity designated in accordance with the provisions of N.J.S.A. 55:19-90.
B.
The court shall grant the Borough of Kinnelon possession of the property
if it finds that:
(1)
The proposed rehabilitation and reuse of the property is appropriate
and beneficial;
(2)
The Borough of Kinnelon is qualified to undertake the rehabilitation
and reuse of the property; and
(3)
The plan submitted by the Borough of Kinnelon represents a realistic
and timely plan for the rehabilitation and reuse of the property.
C.
The Borough of Kinnelon shall take all steps necessary and appropriate
to further the rehabilitation and reuse of the property consistent
with the plan submitted to the court. In making its findings pursuant
to this section, the court may consult with qualified parties, including
the Department of Community Affairs, and, upon request by a party
in interest, may hold a hearing on the plan.
D.
Where either a redevelopment plan pursuant to N.J.S.A. 40A:12A-1
et seq. or a neighborhood revitalization plan pursuant to N.J.S.A.
52:27D-490 et seq. has been adopted or approved by the Department
of Community Affairs, as appropriate, encompassing the property which
is the subject of a complaint, the court shall make a further finding
that the proposed rehabilitation and reuse of the property are not
inconsistent with any provision of either plan.
A.
The Borough of Kinnelon may exercise its rights under N.J.S.A. 55:19-78
et seq. directly, or may designate a qualified rehabilitation entity
to act as its designee for the purpose of exercising the Borough's
rights where that designation will further the rehabilitation and
reuse of the property consistent with Borough's plans and objectives.
This designation shall be made by resolution of the Mayor and the
Council of the Borough of Kinnelon. The Mayor and Council may delegate
this authority to the public officer.
B.
Regardless of whether the Borough of Kinnelon exercises its rights
directly or designates a qualified rehabilitation entity pursuant
to this section, while in possession of a property pursuant to N.J.S.A.
55:19-78 et seq., the Borough of Kinnelon shall maintain, safeguard,
and maintain insurance on the property. Notwithstanding the Borough's
possession of the property, nothing in N.J.S.A. 55:19-78 et seq. shall
be deemed to relieve the owner of the property of any civil or criminal
liability or any duty imposed by reason of acts or omissions of the
owner.
A.
If the Borough of Kinnelon has been granted possession of a property
pursuant to N.J.S.A. 55:19-89, that Borough shall be deemed to have
an ownership interest in the property for the purpose of filing plans
with public agencies and boards, seeking and obtaining construction
permits and other approvals, and submitting applications for financing
or other assistance to public or private entities.
(1)
For the purposes of any state program of grants or loans, including
but not limited to programs of the Department of Community Affairs
and the New Jersey Housing and Mortgage Finance Agency, possession
of a property under this section shall be considered legal control
of the property.
(2)
Notwithstanding the granting of possession to the Borough of Kinnelon,
nothing in N.J.S.A. 55:19-78 et seq. shall be deemed to relieve the
owner of the property of any obligation the owner or any other person
may have for the payment of taxes or other Borough of Kinnelon liens
and charges, or mortgages or liens to any party, whether those taxes,
charges or liens are incurred before or after the granting of possession.
(3)
The granting of possession shall not suspend any obligation the owner
may have as of the date of the granting of possession for payment
of any operating or maintenance expense associated with the property,
whether or not billed at the time of the granting of possession.
B.
The court may approve the borrowing of funds by the Borough of Kinnelon
to rehabilitate the property and may grant a lien or security interests
with priority over all other liens or mortgages other than municipal
liens. Prior to granting this lien priority, the court shall find
that (1) the Borough of Kinnelon sought to obtain the necessary financing
from the senior lienholder, which declined to provide such financing
on reasonable terms; (2) the Borough of Kinnelon sought to obtain
a voluntary subordination from the senior lienholder, which refused
to provide such subordination; and (3) lien priority is necessary
in order to induce another lender to provide financing on reasonable
terms.
(1)
No lien authorized by the court shall take effect unless recorded
in the office of the Morris County Clerk. For the purposes of this
section, the cost of rehabilitation shall include reasonable nonconstruction
costs such as architectural fees or construction permit fees customarily
included in the financing of the rehabilitation of residential property.
C.
Where the Borough of Kinnelon has been granted possession by the
court in the name of the Borough, the Borough of Kinnelon may seek
the approval of the court to assign its rights to another entity,
which approval shall be granted by the court when it finds that (1)
the entity to which the Borough's rights will be assigned is
a qualified rehabilitation entity; and (2) the assignment will further
the purposes of this section.
D.
Where the Borough of Kinnelon has designated a qualified rehabilitation
entity to act on its behalf, the qualified rehabilitation entity shall
provide quarterly reports to the Borough of Kinnelon on its activities
and progress toward rehabilitation and reuse of the property. The
Borough of Kinnelon or qualified rehabilitation entity, as the case
may be, shall provide such reports to the court as the court determines
to be necessary. If the court finds that the Borough of Kinnelon or
its designee have failed to take diligent action toward rehabilitation
of the property within one year from the grant of possession, then
the court may request the Borough of Kinnelon to designate another
qualified rehabilitation entity to exercise its rights, or, if the
Borough of Kinnelon fails to do so, may terminate the order of possession
and return the property to its owner.
E.
The Borough of Kinnelon shall file a notice of completion with the
court, and shall also serve a copy on the owner and any mortgage holder
or lien holder, at such time as the Borough of Kinnelon has determined
that no more than six months remain to the anticipated date on which
rehabilitation will be complete. This notice shall include an affidavit
of the public officer attesting that rehabilitation can realistically
be anticipated to be complete within that time period, and a statement
setting forth such actions as it plans to undertake to ensure that
reuse of the property takes place consistent with the plan.
A.
An owner may petition for reinstatement of the owner's control
and possession of the property at any time after one year from the
grant of possession, but no later than 30 days after the Borough of
Kinnelon has filed a notice of completion with the court or, in the
event the notice of completion is filed within less than one year
of the grant of possession, within 30 days after the Borough of Kinnelon
has filed notice.
B.
The court may allow additional time for good cause if that additional
time does not materially delay completion of the rehabilitation, place
undue hardship on the Borough of Kinnelon, or affect any of the terms
or conditions under which the Borough of Kinnelon has applied for
or received financing for the rehabilitation of the property.
Any petition for reinstatement of the owner's control and
possession of the property filed pursuant to N.J.S.A. 55:19-92 shall:
A.
Include a plan for completion of the rehabilitation and reuse of
the property consistent with the plan previously approved by the court;
B.
Provide legally binding assurances that the owner will comply with
all conditions of any grant or loan secured by the Borough of Kinnelon
or repay those grants or loans in full, at the discretion of the maker
of the loan or grant; and
C.
Be accompanied by payment equal to the sum of (1) all Borough liens
outstanding on the property; (2) all costs incurred by the Borough
of Kinnelon in bringing action with respect to the property; (3) any
costs incurred by the Borough of Kinnelon not covered by grants or
loans to be assumed or repaid pursuant to this section; and (4) any
costs remaining to complete rehabilitation and reuse of the property,
as determined by the public officer, which payment shall be placed
in escrow with the Clerk of the Court pending disposition of the petition.
A.
Prior to the granting of a petition on the part of the owner by the
court pursuant to N.J.S.A. 55:19-92, the owner may be required to
post a bond or other security in an amount determined by the court,
after consultation with the public officer, as likely to ensure that
the owner will continue to maintain the property in sound condition.
That bond or other security shall be made available to the Borough
of Kinnelon to make any repair on the property in the event of a code
violation which is not corrected in timely fashion by the owner. The
bond or other security may be forfeit in full in the event that the
owner fails to comply with any requirement imposed as a condition
of the reinstatement petition filed pursuant to N.J.S.A. 55:19-92.
B.
The owner may seek approval of the court to be relieved of this requirement
after five years, which shall be granted if the court finds that the
owner has maintained the property in good repair during that period,
that no material violations affecting the health and safety of the
tenants have occurred during that period, and that the owner has remedied
other violations in a timely and expeditious fashion.
If the owner fails to petition for the reinstatement of control
and possession of the property within 30 days after the entity in
possession has filed a notice of completion or in any event within
two years after the initial grant of possession, or if the owner fails
to meet any conditions that may be set by the court in granting a
reinstatement petition filed pursuant to N.J.S.A. 55:19-92, upon petition
from the entity in possession, the court may grant the Borough of
Kinnelon title or authorize the Borough of Kinnelon to sell the property,
subject to the provisions of N.J.S.A. 55:19-96.
A.
Where the Borough of Kinnelon seeks to gain title to the property,
it shall purchase the property for fair market value on such terms
as the court shall approve, and may place the proceeds of sale in
escrow with the court.
(1)
The court may authorize the Borough of Kinnelon to sell the building
free and clear of liens, claims and encumbrances, in which event all
such liens, claims and encumbrances shall be transferred to the proceeds
of sale with the same priority as existed prior to resale in accordance
with the provisions of this section, except that municipal liens shall
be paid at settlement.
(2)
The proceeds of the purchase of the property shall be distributed
as set forth in N.J.S.A. 55:19-97.
B.
The Borough of Kinnelon may seek approval of the court to sell the
property to a third party when the court finds that such conveyance
will further the effective and timely rehabilitation and reuse of
the property.
C.
Upon approval by the court, the Borough of Kinnelon shall sell the
property on such terms and at such price as the court shall approve,
and may place the proceeds of sale in escrow with the court. The court
shall order a distribution of the proceeds of sale after paying court
costs in the order of priority set forth in N.J.S.A. 55:19-97.
The proceeds paid pursuant to Subsection C of N.J.S.A. 55:19-96
shall be distributed in the following order of priority:
A.
The costs and expenses of sale;
B.
Other governmental liens;
C.
Repayment of principal and interest on any borrowing or indebtedness incurred by the Borough of Kinnelon and granted priority lien status pursuant to Subsection A of N.J.S.A. 55:19-98;
D.
A reasonable development fee to the Borough of Kinnelon consistent
with the standards for development fees established for rehabilitation
programs by the New Jersey Department of Community Affairs or the
New Jersey Housing and Mortgage Finance Agency;
E.
Other valid liens and security interests, in accordance with their
priority; and
F.
The owner.
A.
The public officer, with the approval of the court, may place a lien
on the property to cover any costs of the Borough of Kinnelon in connection
with a proceeding under N.J.S.A. 55:19-78 et seq. incurred prior to
the grant by the court of an order of possession under N.J.S.A. 55:19-78
et seq., which may include costs incurred to stabilize or secure the
property to ensure that it can be rehabilitated in a cost-effective
manner. Any such lien shall be considered a Borough lien for the purposes
of N.J.S.A. 54:5-9 with the rights and status of a Borough lien pursuant
thereto.
B.
With the exception of the holding of special tax sales pursuant to
N.J.S.A. 55:19-101, the remedies available under N.J.S.A. 55:19-78
et seq. shall be available to the Borough of Kinnelon with respect
to any abandoned property, whether or not the Borough of Kinnelon
has established an abandoned property list as provided in N.J.S.A.
55:19-55 and whether or not the property has been included on any
such list.
Notwithstanding any provision to the contrary in N.J.S.A. 55:19-78
et seq., a court may in its discretion deny a lien holder or mortgage
holder of any or all rights or remedies afforded lien holders and
mortgage holders under N.J.S.A. 55:19-78 et seq., if the court finds
that the owner of a property subject to any of the provisions of N.J.S.A.
55:19-78 et seq. owns or controls more than a 50% interest in, or
effective control of, the lienholder or mortgage holder or that the
familial or business relationship between the lienholder or mortgage
holder and the owner precludes a separate interest on the part of
the lienholder or mortgage holder.
With respect to any lien placed against any real property pursuant
to the provisions of N.J.S.A. 40:48-2.3, N.J.S.A. 40:48-2.5 or N.J.S.A.
40:48-2.3a or any receiver's lien pursuant to N.J.S.A. 2A:42-114
et seq., the Borough of Kinnelon shall have recourse with respect
to the lien against any asset of the owner of the property if an individual,
against any asset of any partner if a partnership, and against any
asset of any owner of a 10% interest or greater if the owner is any
other business organization or entity recognized pursuant to law.
The Borough of Kinnelon may hold special tax sales with respect
to those properties eligible for tax sale pursuant to N.J.S.A. 54:5-19
which are also on an abandoned property list established by the Borough
of Kinnelon pursuant to N.J.S.A. 55:19-55. If the Borough of Kinnelon
elects to hold a special tax sale, it shall conduct that sale subject
to the following provisions:
A.
The Borough of Kinnelon shall establish criteria for eligibility
to bid on properties at the sale, which may include, but shall not
be limited to: documentation of the bidder's ability to rehabilitate
or otherwise reuse the property consistent with Borough's plans
and regulations; commitments by the bidder to rehabilitate or otherwise
reuse the property, consistent with Borough's plans and regulations;
commitments by the bidder to take action to foreclose on the tax lien
by a date certain; and such other criteria as the Borough of Kinnelon
may determine are necessary to ensure that the properties to be sold
will be rehabilitated or otherwise reused in a manner consistent with
the public interest;
B.
The Borough of Kinnelon may establish minimum bid requirements for
a special tax sale that may be less than the full amount of the taxes,
interest and penalties due, the amount of such minimum bid to be at
the sole discretion of the Borough of Kinnelon, in order to ensure
that the properties to be sold will be rehabilitated or otherwise
reused in a manner consistent with the public interest;
C.
The Borough of Kinnelon may combine properties into bid packages,
and require that bidders place a single bid on each package, and reject
any and all bids on individual properties that have been included
in bid packages;
D.
The Borough of Kinnelon may sell properties subject to provisions that, if the purchaser fails to carry out any commitment that has been set forth as a condition of sale pursuant to Subsection A of this section or misrepresents any material qualification that has been established as a condition of eligibility to bid pursuant thereto, then the properties and any interest thereto acquired by the purchaser shall revert to the Borough of Kinnelon, and any amount paid by the purchaser to the Borough of Kinnelon at the special tax sale shall be forfeit to the Borough;
E.
In the event there are two or more qualified bidders for any property
or bid package in a special tax sale, the Borough of Kinnelon may
designate the unsuccessful but qualified bidder whose bid was closest
to the successful bid as an eligible purchaser;
F.
In the event that the purchaser of that property or bid package fails
to meet any of the conditions of sale established by the Borough of
Kinnelon pursuant to this section, and their interest in the property
or properties reverts to the Borough of Kinnelon, the Borough of Kinnelon
may subsequently designate the entity previously designated as an
eligible purchaser as the winning bidder for the property or properties,
and assign the tax sale certificates to that entity on the basis of
that entity's bid at the special tax sale, subject to the terms
and conditions of the special tax sale;
G.
The Borough of Kinnelon shall provide notice of a special tax sale pursuant to N.J.S.A. 54:5-26. The notice shall include any special terms of sale established by the Borough of Kinnelon pursuant to Subsection B, C or D of this section. Nothing shall prohibit the Borough of Kinnelon from holding a special tax sale on the same day as a standard or accelerated tax sale.
With respect to any eminent domain proceeding carried out under
N.J.S.A. 55:19-56, the fair market value of the property shall be
established on the basis of an analysis which determines independently:
A.
The cost to rehabilitate and reuse the property for such purpose
as is appropriate under existing planning and zoning regulations governing
its reuse or to demolish the existing property and construct a new
building on the site, including all costs ancillary to rehabilitation
such as, but not limited to, marketing and legal costs;
B.
The realistic market value of the reused property after rehabilitation
or new construction, taking into account the market conditions particular
to the neighborhood or subarea of the Borough of Kinnelon in which
the property is located; and
C.
The extent to which the cost exceeds or does not exceed the market
value after rehabilitation, or demolition and new construction, and
the extent to which any "as is" value of the property prior to rehabilitation
can be added to the cost of rehabilitation or demolition and new construction
without the resulting combined cost exceeding the market value as
separately determined. If the appraisal finds that the cost of rehabilitation
or demolition and new construction, as appropriate, exceeds the realistic
market value after rehabilitation or demolition and new construction,
there shall be a rebuttable presumption in all proceedings under this
subsection that the fair market value of the abandoned property is
zero, and that no compensation is due the owner.
If a property, which an entity other than the Borough of Kinnelon
has purchased or taken assignment from the Borough of Kinnelon of
a tax sale certificate, is placed on the abandoned property list,
the property shall be removed from the list if the owner of the certificate
pays all Borough's taxes and liens due on the property within
30 days after the property is placed on the list; provided, however,
that if the owner of the certificate fails to initiate foreclosure
proceedings within six months after the property was first placed
on the list, the property shall be restored to the abandoned property
list.
A.
Any interested party may submit in writing a request to the public
officer that a property be included on the abandoned property list
prepared pursuant to N.J.S.A. 55:19-55, specifying the street address
and block and lot number of the property to be included, and the grounds
for its inclusion. Within 30 days of receipt of any such request,
the public officer shall provide a written response to the party,
either indicating that the property will be added to the list of abandoned
properties or, if not, the reasons for not adding the property to
the list. For the purposes of this section, "interested party" shall
include any resident of the Borough of Kinnelon, any owner or operator
of a business within the Borough of Kinnelon or any organization representing
the interests of residents or engaged in furthering the revitalization
and improvement of the neighborhood in which the property is located.
B.
Any interested party may participate in any redetermination hearing
held by the public officer pursuant to Subsection E of N.J.S.A. 55:19-55.
Upon written request by any interested party, the public officer shall
provide the party with at least 20 days' notice of any such hearing.
The party shall provide the public officer with notice at least 10
days before the hearing of its intention to participate, and the nature
of the testimony or other information that is proposes to submit at
the hearing.
