Do you require zoning assistance in Cape May Point, Cape May, West Cape May, Wildwood Crest, Wildwood, North Wildwood, Middle Township, Lower Township, Stone Harbor, Avalon, Dennis Township, Sea Isle City, or Ocean City? You want to build a small structure on your property, but the property is so oddly shaped that no matter where you put the building it will violate the local ordinance requiring that buildings be set back a minimum of 50 feet from the boundary line. The best you can do is 38 feet from the boundary. Are you stopped forever from building on your property? The answer is probably not, but you should retain the services of an experienced New Jersey land use attorney to give yourself the best chance of establishing that you’re entitled to a variance from the setback requirement.
New Jersey’s Municipal Land Use Law (MLUL) sets up the basic framework for land use regulation in the State but leaves specific details to local governments which are responsible for developing master plans and zoning laws. If you want to do something that the local zoning law doesn’t allow, you need to obtain variance approval from the local authorities. The basic standards for when a variance is appropriate are set by the State in the MLUL. So, you need to get a variance from the local authorities, but the standards for when a variance is appropriate are set by the State in the MLUL.
The MLUL specifies two types of variances, C and D, named for the section of the law that provides for them. They differ both as to the type of restriction from which a variance is sought, and the strength of the justification needed to obtain one.
Two types of “C” Variances Exist:
C-1 Variances, also called “Hardship Variances” or “Bulk Variances,” are based on a claim that the owner will suffer a hardship if the owner is not granted the variance. This hardship must relate to the physical or topographic features of the property and does not include personal or financial hardships. The applicant must show the Board that a hardship exists based on (i) narrowness, shallowness or irregular shape of the lot (ii) an exceptional topographic condition of the lot or (iii) other unique conditions of physical features affecting the property.
When an owner’s land does not qualify for a C-1 Variance, the owner may apply for a C-2 Variance, also known as a “Flexible C Variance.” This application involves showing the Board that granting the variance will benefit the community by improving local zoning and planning. The applicant must show the Board that (i) variance is needed for the specific piece of property (ii) the proposed variance advances multiple purposes of the MLUL and (iii) the benefits of the deviation from the local zoning ordinance resulting from granting the variance would substantially outweigh any detriment.
D-Variances are commonly known as “Use” variances. A D or Use variance is best understood as an approval to use a property in a manner that is not permitted by the municipality’s ordinance. The process for obtaining a D-Variance is more complicated than that of a C-Variance and D-Variances are granted less often.
For a D-Variance to be granted, the Applicant must address both the positive criteria (also known as special reasons) and the negative criteria relating to the proposed development.
There are three ways of proving the positive criteria (also known as special reasons):
Once the positive criteria is proven, the applicant must also prove that the negative criteria is met. To prove the negative criteria is met, the applicant must show the Board that:
D-1 Use Variances are required when the owner’s proposed use of property or a principal structure is not permitted in the zoning district. The applicant must show (i) special reasons as to why the proposed use is particularly suited for the property by proving that the use will promote the purposes of zoning identified in the MLUL.
Owners should consider the fact that there are some uses, such as schools and hospitals, that are deemed “inherently beneficial” which means they are universally considered to be of such value that they fundamentally service the public good and promote general welfare.
D-2 Expansion of a Pre-Existing Nonconforming Use Variances are required when the owner proposes to expand a lawful pre-existing nonconforming use. The applicant must show the Board that (i) the proposed development will advance the purposes of zoning (ii) the use is in-fact lawfully pre-existing. This requires evidence that the use either pre-existed the adoption of the municipality’s first zoning ordinances or was previously permitted but the ordinance was later amended to prohibit that use.
Many zoning districts have “conditional uses.” If an owner meets all of the requisite conditions established by the municipality to authorize the conditional use, the owner will be permitted to develop the conditional use. If the owner does not meet all of the requisite conditions he must show the Board that (i) the property can still accommodate the use despite the applicant’s inability to meet a particular condition or conditions.
Floor Area Ratio is the sum of all floors of a building or structure compared to the total area of the site. When an owner’s proposed development exceeds the municipality’s Floor Area Ratio standards, the applicant must show the Board that (i) the property can reasonably accommodate any problem associated with the structure being larger than what the Floor Area Ratio permits.
When an owner’s property exceeds the municipality’s density restrictions, the applicant must show the Board that (i) the property can accommodate a greater density that what is permitted.
When an owner’s proposed development exceeds the municipality’s building height restriction by 10 feet or 10% of the maximum permitted building height, the applicant must show the Board that (i) the proposed structure can be reasonably accommodated on the property despite of its height.
Variances are not the only way that landowners can use their property in ways that don’t conform to the overall zoning laws. There are also:
Obtaining a variance in New Jersey can be time-consuming and technical. Opposing an application for a variance, of course, can be just as time-consuming and technical. Whether you want a variance, want to stop a variance from being granted, or want to appeal the decision on the variance, KingBarnes can lend its 20 years of real estate and land use experience to your cause. In essence, the variance process begins with a serious analysis of what uses are already allowed. To learn more, call KingBarnes, LLC today.
