The Municipal Land Use Law (“MLUL”) is the legislative foundation of Planning Boards and Zoning Boards of Adjustment in the State of New Jersey. It defines the powers and responsibilities of boards and is essential to their functions and decisions. In New Jersey, pursuant to the MLUL, every municipality has adopted a set of Land Use and Zoning Ordinances which define and regulate permitted and prohibited uses within a particular zone.
If you are a resident or an entity doing business in the state of New Jersey looking to expand or construct a structure or to use a property for a particular use, you are required to comply with your town’s local municipal ordinances. Under certain circumstances, where a construction plan does not comply with the local ordinances or where the proposed use is not permitted, the individual or business may be required to obtain a Variance from the local Planning or Zoning Board. Variance relief permits the individual to move forward with this construction plan and/or use despite the prohibition contained in the ordinance. The law requires the applicant seeking variance relief to establish entitlement to that relief. See N.J.S.A. 40:55D-70.
For example, type “C” variance relief is appropriate where an applicant’s plan to develop land would result in a violation of zoning ordinances. Type “C” relief requires an applicant to demonstrate that they will suffer a “hardship” if the applicant is not granted the variance. Hardship generally does not relate to any personal or financial hardship, but instead must relate to the unique condition of the property. For example, if by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures on the property, the strict application of any ordinance would result in an undue hardship upon the applicant, the Board of Adjustment may grant variance relief. N.J.S.A. 40:55D-70 (c).
Where an applicant is not entitled to type C(1) relief, an applicant may apply for a “flexible C variance”, also known as a type C (2) variance. This application requires a showing to the zoning board that granting the variance will benefit the community by improving local zoning and planning.
Where an applicant is seeking relief which would change a permitted function, such as changing the use of a property from residential to commercial, applicants need to apply for what is known as a type “D” variance. The newly proposed intended use of property must be approved because the use is not permitted under the local ordinances. Type “D” variances are very complex and much more difficult to obtain than a Type “C”.
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Local ordinances, zoning, and permitted uses for particular districts vary from town to town. The variance application process is complicated, and applicants are required to provide statutory legal notice to nearby and adjourning property owners, and notice public hearings. Moreover, affected and potentially affected property owners are permitted to object to requests for variance relief. As a result, the process can be stressful and complicated. Thus, whether you are an applicant in need for variance relief or a neighbor who is seeking to prevent a neighboring property owner from engaging in construction or seeking approval to use a property in a way which would otherwise be prohibited, you should consult with an attorney with Bathgate, Wegener, and Wolf, P.C.
Our land use attorneys work closely with other attorneys in the Firm such as the real estate, environmental and banking groups. We enable our clients to take a project from conception through the full approval process, up to and including building permits.
We have handled all types of development and redevelopment, including residential and mixed use projects, office parks, industrial plants, distribution centers, publishing plants, refineries and terminals, health care facilities, shopping centers, and cogeneration plants.
Our experience includes obtaining approvals for low and moderate housing development, preparing developer and redeveloper agreements, drafting and helping to enact rezoning and master plan changes, and obtaining zoning and land use approvals, including local and county applications, land use counseling, and zoning litigation.