Obtaining a Variance for a Non-Conforming Use or Structure

Nonconforming uses or structures are those which were legally permitted and in existence prior to a municipality establishing an ordinance which now prohibits such uses or structures. Generally speaking, New Jersey law protects landowners from losing property rights that pre-date land use regulations pertaining to their land. A valid, pre-existing use or building has the legal right to continue indefinitely upon the land.

A Municipal Zoning Board is authorized to determine whether such a structure or use qualifies as a pre-existing, non-conforming use or structure. Such a request may come before the board by the owner of the alleged nonconforming use or structure as an application for certification or as the result of an objector challenging the use or structure. When this occurs, the Zoning Board will decide whether a use or structure does in fact qualify as a pre existing non conforming use or structure. The Zoning Board must ask what the use of the property was at the time the new zoning ordinance was established which now prohibits it. If the use then is the same as it is now, it will be qualified as a pre-existing nonconforming use. Municipal review may also occur when a property owner seeks a minor alteration or expansion of a pre-existing, nonconforming use. If such case, a d(2) variance must be requested and the Zoning Board must analyze whether the applicant has shown sufficient “special reasons” under the D variance requirements (see discussion of a “D” variance).

Obtaining a Variance For a Non-Conforming Use or Structure Part 1

Non-Conforming Variances Part 2

Preexisting, nonconforming uses are not allowed to be abandoned then revived. Once the use or building is abandoned, the property’s legal protection from the present zoning ordinance is gone. Additionally, destruction of the nonconforming use or building, whether by design or by accident (i.e., fire, hurricane, lightening, etc.), also terminates its legal status as a pre-existing, nonconforming use. While a structure or use is allowed to be maintained indefinitely if it is considered pre-existing and nonconforming, an owner may not enlarge or materially modify the use.

Fredrick P. Niemann Esq.

Pre-existing nonconforming structures and uses are a complicated area of land use law in New Jersey. It is important that you seek an experienced New Jersey attorney to ensure that you are allowed to continue using your property as you always have, despite any recent changes in zoning ordinances.

Please contact Fredrick P. Niemann, Esq. if you have any questions regarding land use ordinances or a pre-existing, nonconforming structure or use.

He can be reached at our toll free number (855) 376-5291 or by email at fniemann@hnlawfirm.com. He welcomes your inquires.



Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Zoning Law Attorney