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Introduction to Variances and NJ Zoning Laws
New Jersey law allows every municipality in the state to adopt building and land use laws within their municipal boundary lines and all property owners must abide by these laws. These local laws are often referred to as municipal zoning ordinances. I’m going to teach you about these laws and the laws governing variances on this page.
When attempting to subdivide land, develop property, establish a business, build a commercial building or simply add an addition to one’s house, the owner may be required to apply for what is known as a “variance” with the Municipal Planning Board or Zoning Board if the land, structure, or proposed use of the property does not conform to the zoning ordinances of the municipality.
Applying for a variance can be a stressful, confusing process. Applicants who are unaware of how the process works often have their applications denied and are told they cannot build as desired. This occurs not because the owner is legally forbidden from using their property the way they want, but because they were unfamiliar with local zoning laws and what they needed to do to obtain a variance prior to building their structure or profitably using their property.
Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, PC recently won a significant land use victory before Judge Hurley of the Middlesex County Superior Court wherein the Court reversed the granting of a use variance and site plan approval to the owner and operator of a significant commercial business adjacent to Mr. Niemann’s residential client. It is expected that the landowner will appeal Judge Hurley’s decision to the Appellate Division of the Superior Court. Mr. Niemann wishes to acknowledge the excellent assistance of Senior Associate Bonnie Wright, Esq.
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What is Zoning?
All land in a municipality located in NJ is divided into districts or zones. Each zone has specific regulations as to the types of activities or uses for which property can be used. For example: Single family residential, professional office, multi-family, retail, etc.) have specific requirements regulating lot and building sizes, the location of buildings on the property and the intensity of the development. Among the reasons for dividing land into zones are to guide the development of land in an orderly fashion and to prevent conflicts between different types of uses. In residential zones for example, incompatible uses such as factories, shopping centers, and offices are not permitted. By regulating the placement, height and intensity of development, allows a municipality to be a more attractive and orderly community.
Although each municipality may establish different zoning regulations, all zoning regulations and all actions of the Zoning Board must be in accordance with the requirements of the New Jersey Municipal Land Use Law.
What is a Variance?
All development must conform to the specific requirements of the zoning district in which the property is located as well as zoning regulations. In some cases, it may not be possible to meet these requirements because of the shape or special physical characteristics of the property. In other cases, a property owner may wish to develop a site in a different way than is permitted by the zoning regulations. A variance is an official act of the township which permits a property owner to use or develop property in a manner which would not otherwise be allowed under the zoning requirements of the township.
What is the Zoning Board of Adjustment?
The Zoning Board of Adjustment is a group of citizens appointed by the governing body that has the power to grant variances from the zoning requirements. The board can only grant a variance in accordance with the requirements of the Municipal Land Use Law. In all cases before the Zoning Board of Adjustment, it is the applicant’s burden to prove his or her case. In addition, the applicant must demonstrate that the granting of a variance will not create any harm to the public, or impair the intent and purpose of the Zoning Ordinance.
Understanding the Basics of NJ Zoning Laws
Generally, there are two broad categories of variances. The Zoning Board may grant a “d” or “use” variance to permit a use or type of building that is not otherwise allowed. The Zoning Board may also grant “bulk variances” from the zoning requirements related to the location and placement of building or structures, or the size and configuration of a piece property. There are two different types of bulk variances, also known as the “C-1” and “C-2,” variances. (The number refers to the subsection of the Municipal Land Use Law which describes these variances.)
“C-1” variances involve cases where because of the size, shape, topography or other physical features that are unique to your property, the zoning requirements would place an exceptional burden or hardship upon you. Suppose that you would like to build a house on a property that has steep slopes on a portion of the site. In order to avoid disruption of the slopes, the house would have to be placed on the property in a manner such that the side yard setback of the house (i.e., the distance required between the house and the side property line) would not meet the Township requirement. The Board of Adjustment would be justified in granting a variance for the insufficient side yard setback if you were to demonstrate that I) the physical constraints -of that particular property would not allow you to meet the zoning requirements and 2) that the variance could be granted without harming the public welfare or impairing the intent and purpose of the Township’s Zoning Ordinance.
“C-2” variances do not require a demonstration of hardship however, you must demonstrate that the variance requested would promote one of the goals of the Municipal Land Use Law and that the benefits of granting a variance would substantially outweigh and detriment. For example, suppose you would want to build a house on a property that does not have any physical limitations such as wetlands or steep slopes. Although the house could meet all zoning requirements, you would like to place the house closer to the front property line than is normally allowed and in order to be consistent with the setback of other houses in the neighborhood. If you were to demonstrate that 1) the proposed development allows a more desirable visual environmental and a better utilization of the property and 2) that the benefits of blending in which the existing pattern of development in the neighborhood and creating a more attractive appearance would outweigh any possible detriments associated with the reduced front yard setback, then the Zoning Board would be justified in granting a variance.
A “D” variance (often called a use variance) is different. It relates mainly to permissible uses of property. An example of a use variance is when someone wants to place an office building in a section of town which is zoned strictly for single family houses and residential use. A use variance is difficult to obtain and confusing to understand but I’ll do my best to explain it in simple English later on in this site.
In deciding whether to grand or deny a variance application, a zoning board must apply specific legal criteria to each case depending upon which variance an applicant is applying for. An applicant must produce evidence known as “positive criteria” and “negative criteria”. Such criteria is intended to show the board that the variance meets the specific requirements of New Jersey law justifying the granting of a variance. A variance will not be granted by a zoning board unless the applicant is able to demonstrate by way of evidence that the specific criteria required by law applies to their property. Many times, property owners don’t know this when applying for a variance and have their application denied because of a lack of evidence to support the variance.
As the applicant, the burden of proof is on you to prove that sufficient legal criteria exists to support your application. Therefore, it is important that you know the law on zoning and what your Municipal Board is looking for to approve your application.
Fredrick P. Niemann and the attorneys at Hanlon Niemann & Wright have appeared before countless planning boards and zoning boards throughout New Jersey to present applications for their clients. They have extensive knowledge of the New Jersey Municipal Land Use Act and the legal criteria that must be satisfied, to obtain a successful variance. An experienced attorney can be the difference between obtaining the variance you need to legally build on your property or losing out on your application over technicalities because you were unfamiliar with New Jersey’s complex zoning and land use laws.
If you are seeking a variance or need legal advice on any aspect of New Jersey’s zoning and land use laws,
please contact Fredrick P. Niemann, Esq., an experienced, knowledgeable zoning land use \attorney. He can be reached at our toll free number, (855) 376-5291 or by email at firstname.lastname@example.org.
He will be able to walk you through the process in a clear and understandable way.
Written by New Jersey Zoning Law Attorney Fredrick P. Niemann, Esq.