Can a Zoning Board Make Owner Occupancy a Condition of Granting a Use Variance?

HNWReal Estate, Landlord/Tenant, and Zoning

zoning board

  • Zoning boards in NJ grant use variances.
  • Generally, a condition of variance approval cannot include a requirement for owner occupancy of a personal residence.
  • Sometimes a zoning board is allowed to impose a personal occupancy requirement as a condition to granting a use variance.

In a recent Appellate Court decision a property owner challenged the approval of a use and bulk variance and site plan by the defendant, a municipal Board of Adjustment (the Board) to a neighbor so they could use their existing two-family residence as a rental with owner occupancy.  The property owner on the other hand argued, among other things, that any Board imposed condition of owner-occupancy as a quid pro quo for granting approval was arbitrary, capricious, and unreasonable.

The applicant proposed “to retrofit and utilize the existing multifamily residential structure as a [three] – family house.” In addition to a use variance authorized by N.J.S.A. 40:55D-70(d)(1), Applicants required a density variance authorized by N.J.S.A. 40:55D-70(d)(5) to permit an insufficient lot area per family instead of the zone’s required lot square footage. Applicants also required multiple bulk variances pursuant to N.J.S.A. 40:55D-70(c) and site plan approval.

During the hearing, one Board member asked if the board could make the approval contingent on the owner occupying the structure. Applicants’ attorney represented to the Board that the applicant intended to reside in the structure. The attorney represented: “This is their home.  So, a condition . . . would we be amenable to a condition of approval which says three units so as long as owner occupies one of them.”  The attorney added, “I think ownership and maintenance goes hand [in] hand. I think that’s very important, so I understand that role. And I think that makes sense here, yeah.”

None of the parties challenged the trial court’s determination that the owner-occupancy condition of the use variance was unlawful. Why?  Because in NJ, it is “a fundamental principle of zoning that a zoning board is charged with a regulation of land use and not with the person who owns or occupies the land.  For that reason, “conditions which make a variance personal to the property owner are invalid.  In this case, if there was substantial doubt that the Board of Adjustment would have granted the variance absent the condition, it is appropriate to remand the matter to the Board to re-determine whether the application should be granted absent the condition.

Where the condition is invalid but was of sufficient importance to the Board that the Board might choose to deny the application without the condition, and might have legitimate grounds for denial, there may be a remand to the Board for a new hearing on the merits of the application.

In this case, the record of the discussion among the Board members raises substantial doubt as to whether the Board would have granted the application absent the condition. Five votes were required to grant the variance. Five of the six members noted the importance of the condition.  One member characterized the owner-occupancy condition as the “key question,” and the Chairman’s comments suggest that for him the condition was the persuading factor.

Accordingly, the court vacated the Board’s resolution approving the application and remanded the matter to the Board to determine whether the application should be granted without the condition.

To discuss your NJ Zoning Board matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq., of Hanlon Niemann & Wright, a Freehold Township, Monmouth County NJ Zoning Board Attorney

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