New Jersey Zoning Laws are a Maze! Every Municipality Has Different Ordinances.
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Introduction to Variances and NJ Zoning Laws
New Jersey allows every municipality in the state to adopt its own 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/ordinances on this and the following pages together with a legal term called a “variance(s)”.
What is a Variance and When Do I Need One?
When attempting to subdivide land, develop property, establish a business, build a commercial building or simply add an addition to one’s house, a property owner may be required to apply for 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. An applicant who is unaware of how the process works often has their application denied and are told they cannot build or subdivide their property as desired. This prohibition occurs not because the owner (or tenant) is legally forbidden from using their property the way they want, but because the owner is unfamiliar with the local zoning law and what is legally required to obtain a variance and secure municipal approval prior to building or profitably using their property.
Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, PC won a significant land use victory before 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.
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What is Zoning?
Each parcel of land in a municipality is located within a zoning district. Each zoning district has specific regulations governing the types of activities and/or uses that can legally be conducted from property located within that zoning district. For example, a single-family residential district, professional office district, multi-family, retail, etc. districts have specific requirements regulating lot and building sizes, the location and setbacks of buildings on the property and the intensity of the uses being operated from the property. Among the reasons for creating zoning districts is 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. 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?
As discussed earlier on this page, all development must conform to the specific requirements of the zoning district in which the property is located. 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, the owner may wish to develop their property differently from what is permitted by local zoning regulations. If so, then the property owner or representative must apply for a variance. A variance is an approval by the municipal planning or zoning board to a property owner/occupant which permits the use or development of property in a manner otherwise not permitted 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 municipal zoning ordinances. The board can only grant a variance in accordance with the standards set forth in the Municipal Land Use Law and the local zoning or planning board ordinances. 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 substantial harm (commonly referred to as negative effects) to the public, or impair the intent and purpose of the Municipal Zoning Ordinance.
Zoning Board of Adjustment
The governing body of a municipality creates by ordinance, a zoning board of adjustment unless the municipality is eligible by law to establish a unified planning and zoning board under N.J.S.A. C.40:55D-25).
A zoning board of adjustment consists of seven regular members and may not appoint more than four alternate members should a regular member be absent or unable to participate in the hearing(s). The term of each regular member is four years, and the term of each alternate member is two years. No member of the board of adjustment shall be permitted to act on any matter in which he or she has, either directly or indirectly, any personal or financial interest.
The board of adjustment elects a chairman and vice chairman from its regular members and selects a secretary, who may or may not be a member of the board of adjustment or a municipal employee.
Alternate members may participate in all matters but may not vote except in the absence or disqualification of a regular member. In the event that a choice must be made as to which alternate member is to vote, alternate members are selected based in the order of their numerical designations.
Members of the zoning board do not hold elected or appointed office.
The zoning board is a quasi-judicial board. Its purpose is to provide relief from the requirements of the municipal zoning ordinance. The requests for relief must be based by law upon satisfaction of the applicant to prove his or her case.
The zoning board must make decisions much as a judge does in court.
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, height or type of building that is not allowed under the zoning ordinances. The Zoning Board may also grant “bulk variances” from the zoning requirements related to the location and placement of a building(s) or structure(s), 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 each variance.)
What is a “C-1” Variance
A “C-1” variance involves a case where because of the size, shape, topography or other physical features unique to the property, the zoning ordinance as written would place an exceptional burden or hardship upon the property owner. For example, suppose you want to build a house on a building lot that has steep topographical features on a portion of the property. In order to avoid disruption of the slopes, the house has to be located on the property such that the side yard setback of the house (i.e., a side yard setback is the distance required between the house and the side yard property line) will not meet municipal requirements. In such an example, the Board of Adjustment can grant a variance for the insufficient side yard setback if you demonstrate that 1) the physical constraints of the property do not allow you to meet the zoning requirements of the ordinance, and 2) the variance can be granted without harming the public welfare or impairing the intent and purpose of the Township’s Zoning Ordinance.
What is a “C-2” Variance
A “C-2” variance does not require a demonstration of hardship however, you must demonstrate that the variance being requested will promote one of the goals of the Municipal Land Use Law and that the benefits of granting the variance will substantially outweigh any detriment to granting the variance. For example, suppose you want to build a house on a property that has physical limitations, say wetlands or a high tension power line. Although the house can meet all of the required zoning requirements, you would like to place the house closer to the front property line than is normally allowed in order to be consistent with the setback of other houses in the neighborhood and avoid impacting the wetlands and the adverse effects of the power line. If you were to demonstrate that 1) the proposed development allows a more desirable visual environment and better utilization of the property and 2) that the benefits of blending the structure with the existing pattern of development in the neighborhood creates a more attractive appearance that would outweigh any possible detriments associated with the reduced front yard setback, then the Zoning Board is justified in granting a variance.
What is a “D” 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 that 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. You can read more about Obtaining a Variance for a Non-Confirming Use or Structure on click here.
Understanding What the Terms Positive and Negative Criteria Mean
In deciding whether to grant 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 demonstrate to the board that the variance request meets the requirements of New Jersey law justifying the grant 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 the 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 in their careers represented dozens of municipal zoning and planning boards and 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 and land use attorney. He can be reached at our toll free number, (855) 376-5291 or by email at email@example.com.
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.