Zoning regulations divide the local area into “zones” or “districts” and determine which activities are permitted in each. A single zone can include a large area. Certain activities may be perfectly acceptable in some parts of the zone, but not all of the zone. In a similar vein, some activities may be detrimental to the character of the area when conducted in one manner, but not at all detrimental when conducted in a different manner.
This is where conditional uses come into play. Conditional uses may be specified in the zoning ordinance. That means that the specific use would be allowed throughout the zone, but only if it is conducted in accordance with various conditions which are also specified in the ordinance. Examples include home occupation being a conditional use in a residential zone and two-family homes being a conditional use in a single-family zone.
For something so simple to describe, this subject can extremely complicated under the land use regulation system employed in New Jersey. The State’s Municipal Land Use Law (MLUL) governs the State’s regulation of zoning and other aspects of land use. The MLUL specifically allows, but doesn’t require, that local zoning laws can provide for conditional uses, as long as the local law also contains “definite specifications and standards” for approval by the Planning Board. These standards must be definite and certain enough that applicants for conditional use permits know the “limit and extent” of the conditions. The courts have characterized conditional uses as hybrids—neither allowed uses nor prohibited uses. They are, in simple terms, “allowable if” the conditions specified in the zoning law are fulfilled.
Conditional uses are different from variances. Variances are needed when the proposed use is prohibited by the zoning law, with the focus on why that use would not harm the zoning plan. Conditional uses, on the other hand, have been “preapproved” in a sense, with the focus shifting from whether the use should be allowed at all to whether the applicant has shown that the specified conditions have been met.
It’s hard to overstate how complicated the issue may become. Conditional uses are granted by the Planning Board, variances by the Zoning Board. In fact, the MLUL specifically provides for applicants to be allowed a conditional use despite not fulfilling the prescribed conditions as one type of “D variance.” In other words, if the conditional use application is denied, applicants then have the option of applying to the Zoning Board for a “conditional use variance”.
The problem that has surfaced in several localities, producing considerable amounts of litigation, is whether the zoning ordinance provision for conditional uses satisfies the State law requirement that the conditional use standards be specific and clear enough to tell the landowner the “limit and extent” of the conditions. Many local ordinances that have tried to describe the standards in vague generalities have simply been declared invalid. This has the same effect as if the local ordinance simply didn’t allow conditional uses—the applicant is left to apply for variance from the zoning board.
There’s no substitute for experience when it comes to navigating the conditional use maze. Even the simplest cases require analyzing (1) whether the zoning ordinance provides for a conditional use; (2) if so, whether the conditions are stated with enough specificity and clarity to be compatible with the MLUL; (3) whether the conditions listed in the ordinance have been satisfied by the proposed use.
With 20 years of New Jersey real estate law experience, KingBarnes can guide you through the process with minimum difficulty and maximum chance of success. We have offices located for your convenience in North Wildwood, Marmora and Egg Harbor Township.
