There are two different approaches you can take when applying for and receiving a “C” variance from your municipal zoning board.
The law in NJ requires evidence (aka proofs) of entitlement to variance relief. The term “hardship” is a “huge” legal term in zoning law, especially when seeking what is known as a “C” variance. A “C” variance requires you will suffer a “hardship” if you are not granted the variance. This hardship must result because of the unique physical or topographic features of the property. Hardship generally cannot relate to any personal or financial hardship you will suffer.
Hardship as relates to a piece of real estate property can be shown by its:
- Narrowness, shallowness, or irregular shape; or
- An exceptional topographic condition(s); or
- Other unique conditions or physical features affecting the property
A good example to illustrate when a “C” variance is needed is required involves an applicant who cannot meet the setback requirements to build a structure (i.e., home, commercial building, pool, storage shed) based on the fact that the lot he or she is seeking to build upon is triangular in shape, therefore no matter where he or she places the structure, it will be closer to his or her property boundary line than permitted by the municipal ordinance. In this example, as a property owner you can apply for a C (1) variance based on the irregular (triangular) shape of the property.
An additional criteria to be established by an applicant to allow for a C (1) variance to be granted involves what is known as the “negative criteria”. The “negative criteria” involves showing first, that the variance can be granted without causing a substantial detriment to the public good and second, that the granting of a variance will not substantially impair the intent and purpose of the municipal zoning plan and ordinance. These two requirements must be shown not just for a c (1) variance, but for all “C” and “D” variances.
Another legal approach to consider when your land does not qualify for a C (1) variance is to apply for what is known as a C (2) variance, also known as a “flexible C variance”. This type of application involves showing the zoning board that granting the variance will actually benefit the community by improving local zoning and planning. In order to prove a C (2) variance, one must demonstrate that:
- The variance is needed for a specific piece of property;
- The proposed variance advances the purposes of the Municipal Land Use Law; and
- The benefits of granting a variance from the local zoning ordinance will substantially outweigh any detriment that may (will) result from approving the variance.
To satisfy the requirements of a c (2) variance, one must prove by clear and persuasive evidence that the need for the variance falls within one of the specific purposes listed in the municipal land use law. The Municipal Land Use Law lists 15 separate purposes that relate generally to the public health, safety, establishment of appropriate population densities and desirable visual environments, etc.
An example of a “flexible C variance” is when a small setback variance of several feet in a back yard is needed to allow a house to be built in scale and harmony with the character of the neighborhood. Here the application relates to a specific structure (a house, for example) maintains an appropriate population density (a purpose of the Municipal Land Use Law), and fits into the character of the community. These benefits might (if clearly proven) substantially outweigh any detriment that a small setback variance could cause. The negative criteria would be satisfied if the variance is shown not to cause substantial detriment to the public good and does not substantially impair the intent and purpose of the municipal zoning plan.
You Need a Majority Vote of the Zoning Board for a “C” Variance
In order to be approved, all C variances require a majority vote by the local Zoning Board of Adjustment. Obtaining a majority vote and thus your C variance can be complex. Planning Boards and Zoning Boards will demand evidence pertaining to your property. If you are unfamiliar with what they are looking for, you are likely to have your variance application denied. An experienced New Jersey zoning and land use attorney will know what to show the Board in order to put you in the best possible position to obtain your C variance.
Fredrick P. Niemann, Esq. and the attorneys at Hanlon Niemann and Wright have over 40 years of experience in applying for variances before both Planning Boards and Zoning Boards. We have represented both applicants and objectors to applications. We have extensive knowledge of what a zoning board will be looking for when determining the approval/denial of a variance application and the specific legal criteria related to each.
If you need a variance from your local Planning Board or Zoning Board, please do not hesitate to
Contact Fredrick P. Niemann immediately if you have any questions. He can be contacted at our toll free number,
(855) 376-5291 or by email at firstname.lastname@example.org and welcomes your inquiries.
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Zoning Law Attorney