The Differences Between a Planning Board and a Zoning Board
Planning Boards and Zoning Boards are different, and each Board has a different purpose and function.
New Jersey’s Municipal Land Use Law (MLUL) has clarified the powers exercised by each Board.
As one land use commentator stated, “A Planning Board can and should be characterized as the Board of ‘permitted activities.'” The Planning Board’s essential duties are to administer the municipality’s master plan and implement it through zoning, site plan, and subdivision ordinances. These ordinances set forth requirements that an applicant must meet to secure approval of a land use application. If the applicant meets the requirements of the ordinance, the Planning Board must, in virtually all instances, approve the proposed application. There is no basis whatsoever for denying a site plan or subdivision application unless a specific requirement of that ordinance is not met by an applicant (i.e., a variance request or a request to allow a waiver from a site plan requirement).
The Zoning Board, on the other hand, is the Board of “non-permitted uses” and requests for relief from the written standards of the municipality’s land use ordinance. Zoning Boards deal primarily with the issuance of variances. Variances are based upon the individual municipality’s zoning ordinance. The zoning ordinance establishes specific requirements for properties within a municipality and regulates not only the permitted uses but also the size of parcels, setbacks, required parking spaces, signs, conditional uses, and numerous other regulations.
An applicant is never entitled, as a matter of right, to a variance. Rather, an applicant must address and satisfy the specific criteria in the MLUL and case law by meeting certain legal standards of proof. The burden is upon the applicant to show that he or she is entitled to the specific variance relief being requested. Merely applying to a Board and paying the required fees is not sufficient. Depending on the type of variance requested, the applicant will need to provide proof to obtain approval, such as special reasons, a balancing of the pros and cons of the proposal, hardship, negative criteria, etc.
Application Process Before a Municipal Zoning Board of Adjustments or Planning Board
Introduction
The primary purpose of a planning and zoning board is to approve or disapprove a variance(s) and land use application(s) by individuals seeking to use their land for a specific purpose that is contrary to local ordinances. This process was established to create a fair, uniform, and transparent community forum. From my many decades of public and private representation of boards and clients, I think, on balance, these goals have been accomplished and serve the community’s welfare.
Commencement of Your Application
An applicant seeking to appear before either a planning board or a zoning board begins by filing an application with the required number of copies, together with any mandated additional information identified in the application packet.
Many boards make application forms and instructions available on the municipality’s official website for applicants to download. Obviously, this makes securing the application form more convenient and user-friendly.
You Must File a Complete Application
Once you have filed your application, the New Jersey Municipal Land Use Act (MLUL, N.J.S.A. 40:55D-10.3) provides a strict time period in which the municipality must either deem the application complete or incomplete. The law requires that a municipality certify an application complete or incomplete within forty-five days of submission. Failure to do so renders the application automatically complete (Note: this is easier said than legally accomplished).
For an application to be found incomplete, the submission must lack information required on a checklist adopted by ordinance and provided to the applicant. The application can only be deemed incomplete if the municipal agency notifies the applicant in writing of the deficiencies within forty-five days of the date the application was submitted. This checklist contains the various requirements found in the municipal ordinances, such as setback distances, structure locations, landscaping, topography, utilities, wetlands, etc. During its deliberations, a board may require reasonable additional information not specified in the ordinance or revisions in the accompanying documents. The zoning board checklist refers to those areas over which the board has the most control, variances; the planning board list refers primarily to site plan and subdivision requirements.
When an applicant files an application for a “c” or “d” variance and a site plan approval, he or she receives both checklists so that the board has all the necessary information.
Public Notice Must Be Given For All Variances and Most Land Use Applications
Public notice provisions are extremely important since, unless proper notice is given, a zoning or planning board has no jurisdiction to hear an application before it. In other words, the application cannot be heard under any circumstances until proper notice is given.
Proper notice means notice that identifies the property in question, either by street address or lot and block number (or both, whichever is best), must state the date, time, and place of a scheduled hearing before the board, and the nature of the relief sought by the applicant. The notice must also state the time and place where documents related to the application can be inspected by the public.
MLUL, N.J.S.A. 40:55D-12 provides:
Notice shall be given by the applicant unless a particular municipal officer is so designated by ordinance; provided that nothing contained herein shall prevent the applicant from giving such notice if he so desires. Notice pursuant to subsections a., b., d., e., f., g., and h. of this statute shall be given at least 10 days prior to the date of the hearing.
Notice can be given by the applicant or by the municipal officer designated by ordinance, such as the board secretary or clerk. That way, you know for certain the notice is given.
Public notice must also be given by publication in the official newspaper of the municipality, or in a newspaper of general circulation in the municipality.
Personal Notice is Required in Addition to Public Notice
MLUL, N.J.S.A.40:55D-12b provides:
Except as provided in paragraph (2) of subsection h. of this section, notice of a hearing requiring public notice pursuant to subsection a. of this section shall be given to the owners of all real property as shown on the current tax duplicates, located in the state and within 200 feet in all directions of the property which is the subject of such hearing.
Once it is established that notice of the hearing has been given pursuant to the MLUL, N.J.S.A. 40:55D-12a, it is generally the applicant’s responsibility to place notice in the chosen newspaper of general circulation and also to provide personal notice to all property owners within 200 feet of the property. This notice requirement includes properties located within a neighboring municipality’s borders and those properties located within a neighboring municipality, as long as they are within 200 feet of the applicant’s property.
In the event the property within 200 feet of the applicant’s parcel contains a condominium or a horizontal property regime (cooperative) unit, the applicant need not give notice to every owner of a unit in the condominium or cooperative. In those instances, notice need only be given to the condominium association or horizontal property regime.
Notice to Adjoining Municipalities, to the County Planning Board, to the Commissioner of Transportation, to the State Planning Commission, and to Public Utilities
There is another list of public entities that may need to be notified of a proposed application, depending on the property’s location and proposed use. The Municipal Land Use Act specifies which agency(s) must be notified under N.J.S.A. 40:55D-12 (d-h). I invite you to look up the statute for more details.
When applying for a variance before a Planning Board or Zoning Board, an applicant presents his or her case, along with witnesses who testify to the specific variance relief requested. Objectors to a variance application are allowed to attend the meeting and may also voice their objections as witnesses. If the objectors wish to hire an attorney and call separate rebuttal witnesses, they are legally entitled to do so. The Board, the opposing party, and the public all have the right to confront each witness called by a party. In addition, the public record at the end of each hearing remains open to public comments and questions regarding each variance application.
Fredrick P. Niemann Esq.
Applying for a variance before a Planning Board or Zoning Board of Adjustment can be an intimidating process, especially if your application is met with opposition. Oftentimes, an applicant may be unprepared to meet the strict requirements a Board requires when granting a variance. The attorneys at Hanlon Niemann & Wright have presented countless variance applications before Planning Boards and Zoning Boards. They know what to show the Board, what witnesses to call, and what questions to ask witnesses you or your opposition may call. We have also represented many objectors to zoning applications as well.
Please contact Fredrick P. Niemann, Esq. if you have an issue related to Planning Boards or Zoning Boards.
He can be reached at (732) 863-9900 or by email at fniemann@hnlawfirm.com
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Zoning Law Attorney