Zoning and Land Use Law in New Jersey

New Jersey Zoning Laws are a Maze!  Every Municipality Has Different Ordinances.

Let us help you navigate through it all.
Contact Fredrick P. Niemann, Esq. at Hanlon Niemann & Wright today.

Introduction to Variances and NJ Zoning Laws

New Jersey allows every municipality in the state to adopt its own building and land use laws within their municipal boundary and all private property owners must abide by these laws. These local laws are often referred to as municipal zoning ordinances.  I’m going to teach you today about these laws/ordinances together with a legal term called a “variance(s)”.

What is a Variance and When Do I Need One?

When attempting to subdivide land, develop property, establish a business, build a commercial building or simply add an addition to one’s house, a property owner may be required to apply for a “variance” with the Municipal Planning Board or Zoning Board if the land, structure, or proposed use of the property does not conform to the zoning ordinances of the municipality.

Applying for a variance can be a stressful, confusing process. An applicant who is unaware of how the process works often has their application denied and are told they cannot build, use or subdivide their property as desired. This prohibition occurs not because the owner (or tenant) is legally forbidden from using their property the way they want, but because the owner is unfamiliar with the local zoning law and what is legally required to secure municipal approval prior to building or profitably using their property.

As discussed earlier on this page, all development must conform to the specific requirements of the zoning district in which the property is located. In some cases, it may not be possible to meet these requirements because of the shape or special physical characteristics of the property. In other cases, the owner may wish to develop their property differently from what is permitted by local zoning regulations. If so, then the property owner or representative must apply for a variance. A variance is an approval by the municipal planning or zoning board to a property owner/occupant which permits the use or development of property in a manner otherwise not permitted under the zoning requirements of the municipality.

 

Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, PC won a significant land use victory before the Middlesex County Superior Court wherein the Court reversed the granting of a use variance and site plan approval to the owner and operator of a significant commercial business adjacent to Mr. Niemann’s residential client. 

What is Zoning?

Each parcel of land in a municipality is located within a zoning district. Each zoning district has specific regulations governing the types of activities and/or uses that can legally be conducted from property located within that zoning district. For example, a single-family residential district, professional office district, multi-family, retail, etc. districts have specific requirements regulating lot and building sizes, the location and setbacks of buildings on the property and the intensity of the uses being operated from the property. Among the reasons for creating zoning districts is to guide the development of land in an orderly fashion and to prevent conflicts between different types of uses. In residential zones for example, incompatible uses such as factories, shopping centers, and offices are not permitted. Regulating the placement, height and intensity of development, allows a municipality to be a more attractive and orderly community.

Although each municipality may establish different zoning regulations, all zoning regulations and all actions of the Zoning Board must be in accordance with the requirements of the New Jersey Municipal Land Use Law.

What is the Zoning Board of Adjustment?

The Zoning Board of Adjustment is a group of citizens appointed by the governing body of the municipality that has the power to grant variances from the local zoning law(s). The board can only grant a variance in accordance with the standards set forth in the Municipal Land Use Law (MLUL). The MLUL is a statewide law with many provisions. In all cases before the Zoning Board of Adjustment, it is the applicant’s burden to prove his or her case. In addition, the applicant must demonstrate that the granting of a variance will not substantially harm the public, or impair the intent and purpose of the Municipal Zoning Ordinance. This harm is commonly referred to as negative criteria.

The governing body of a municipality creates by ordinance, a zoning board of adjustment unless the municipality is eligible by law to establish a unified planning and zoning board under N.J.S.A. C.40:55D-25).

A zoning board of adjustment consists of seven regular members and up to (not more than) four alternate members should a regular member or members be absent or unable to participate in one or more scheduled public hearing(s). The term of each regular member is four years, and the term of each alternate member is two years. No member of the board of adjustment is permitted to act on any matter in which he or she has, either directly or indirectly, any personal or financial interest.

The board of adjustment elects a chairman and vice chairman from its regular members and selects a secretary, who may or may not be a member of the board of adjustment or a municipal employee.

Alternate members may appear and participate in all matters of the board but may not vote except in the absence or disqualification of a regular member. In the event that a choice must be made as to which alternate member is to vote, alternate members are selected based in the order of their numerical designation(s).

Members of the zoning board do not hold elected or appointed office.

The zoning board is a quasi-judicial board. Its purpose is to provide relief from the requirements of the municipal zoning ordinance. A request for relief must be justified by law and the zoning board must make it(s) decisions much as a judge does in court.

Rules and Laws Governing the Meetings and Minutes of the Board

The MLUL at N.J.S.A. 40:55D-9 provides in part:

1. Every municipal agency shall by its rules fix the time and place for holding its regular meetings for business authorized to be conducted by such agency. Regular meetings of the municipal agency shall be scheduled not less than once a month and shall be held as scheduled unless canceled for lack of applications or other lawfully permitted reasons. The municipal agency may provide for special meetings, at the call of the chairman, or upon the request of any two of its members, which shall be held on notice to its members and the public in accordance with municipal notice regulations. No action shall be taken at any meeting without a quorum being present. All actions shall be taken by a (not less than) majority vote of the members of the Board present at the meeting.
2. All regular meetings and all special meetings shall be open to the public. Notice of all such meetings shall be given in accordance with municipal regulations.
3. Minutes of every regular or special meeting shall be kept and shall include 1) the names of the persons appearing offering testimony or questioning witnesses who have appeared and testified before the Board, 2) the persons appearing by attorney, 3) the action taken by the municipal agency, and 4) the findings, if any, of the reasons given by Board members in support of their decision. The minutes of all hearings are required to be made available for public inspection during normal business hours at the office of the administrative officer. Any interested party and members of the public have the right to compel production of the minutes for use as evidence in any legal proceedings concerning the subject matter of the public hearings and the actions taken by the Board. An interested party may be charged a reasonable fee for reproduction of the minutes for his use. These charges are generally found in the municipal ordinance or in the Board office.

The secretary or clerk of the Board must keep records including the minutes of the proceedings indicating how each member voted on each question or if they were absent or failed to vote. The Open Public Meetings Act also requires the Board to keep comprehensible minutes, which must be promptly filed in the office of the Board or with the municipal clerk, depending on the requirements of the local ordinance. These records must be readily available for public inspection and copying as required by the Right to Know Law.

The Public Hearing Including References to All Exhibits

The public hearing is where evidence, exhibits and testimony important to the outcome of the zoning application is presented. The testimony of each witness who appears before the board in support of or in opposition to the application is introduced to the board members and their truthfulness and credibility are evaluated by the members of the board. All graphic, electronic, video, and other visual and auditory aides are also presented in conjunction with witness testimony.

Recording

The Land Use Act requires that each municipal agency shall provide a verbatim recording of the proceedings by either a stenographer, mechanical or electronic device. The municipal agency must, if requested, provide a transcript, or duplicate recording to any interested party at his or her expense; unless by ordinance the municipality assumes the expense of transcripts necessary for appeal to the governing body, up to a maximum amount as specified by the ordinance.

The municipal agency, when furnishing a transcript or tape of the proceedings to an interested party cannot charge the requesting party more than the actual cost of preparing the transcript or tape.

The importance of keeping verbatim recordings of board proceedings cannot be overstated. A hearing without an accurate, clear recording is absolutely critical to all parties, whether it is the applicant or an objector. Without the availability of a verbatim record, the board will have to rehear the entire application again. The reason is simple – if there is no record, there is no chance for a court of law to review the proceedings if the board’s decision is appealed. Just imagine if the application was heard over the course of many months with multiple, multiple hearings conducted which now cannot be transcribed. Think it’s impossible? Let me tell you it’s not.

The Application and Hearing Process Before the Board of Adjustment

Filing the Application with the Board Secretary

Maybe you are an applicant who wants to file an application before the Zoning Board. Perhaps you’re a neighbor of a property owner who has recently filed an application before the Board, or someone who is opposed to a recently filed application and you want to learn more about the application process. You’ll find many answers to your questions below.

An applicant desiring to appear before a Board begins by filing an application form with the required number of copies together with such additional information required by local ordinance.

Today, many Boards make application forms and instructions available on the municipality’s official website which can be downloaded by applicants and members of the public including interested objectors.

The Municipal Land Use Act provides a strict time period within which a municipality must either deem an application complete or incomplete for scheduling and concluding the hearing process. The law requires that a municipality certify an application complete or incomplete within forty-five days of its submission. Failure to do so renders the application automatically complete, in many circumstances but there are exceptions so it’s more complex than it reads.

Notice of Public Hearing on a Proposed Land Use/Zoning Application

Public notice requirements are extremely important since, unless proper notice is given, a Zoning or Planning Board has no jurisdiction to hear an application before it. In other words, the application cannot be heard, under any circumstances, until proper legal notice to the public is given.

The required notice given to the public must 1) identify the property in question, preferably by both street address and lot and block, 2) must state the date, time and place of the hearing, and 3) the nature of the relief sought by the applicant. The notice also must state the time and place where documents related to the application can be inspected by the public.

Notices to the public and other statutorily required parties may be given by the applicant or by municipal officers designated by ordinance, such as the Board secretary or clerk. You’ll have to check with the municipality who is required to give required public notice.

As stated earlier, improper notice renders an application ineligible for public hearing since the Board’s jurisdiction requires a lawful public notice. The law also specifically requires the notice of the application be published in an official newspaper of the municipality at least ten days prior to the date of the hearing. Once again, if this requirement is not followed to the letter of the law, no hearing can occur.

Personal Notice of a Proposed Zoning Board Application

N.J.S.A. 40:55D-12b provides that notice of any hearing requiring public notice must (as in shall, it’s not optional) be given to the owners of all real property as shown on the current municipal tax map and within 200 feet in all directions of the property which is the subject of such hearing; provided that this requirement is deemed satisfied by giving notice to any 1) condominium or townhouse association, or apartment complex in the case of any property owner whose home is part of the condominium association, or 2) any horizontal property regime, in the case of any co-owner’s home has an apartment above or below it. Notice must be given by: 1) serving a copy of the notice to the property owner as shown on the said current tax map, or his/her agent in charge of the property, or 2) mailing a copy thereof by certified mail to the property owner at his or her address as shown on the said current tax map.

Once it is established that notice of a hearing must be given pursuant to MLUL, N.J.S.A. 40:55D-12a, it becomes the applicant’s responsibility not only to place the legal notice in the official newspaper of the municipality (unless the municipal ordinance requires that the board give the notice), but also to provide personal notice to all property owners within 200 feet of the subject parcel. This notice requirement includes properties lying within a given municipality’s borders and those properties located within a neighboring municipality as long as they are within 200 feet of the subject parcel.

In the event the property within 200 feet of the applicant’s parcel contains a condominium or a horizontal property regime (cooperative) unit, the applicant need not give notice to every owner of a unit in the condominium or cooperative.

In those instances, notice need only be given to the condominium association or horizontal property regime.

LET’S DISCUSS THE DECISION-MAKING PROCESS BY THE ZONING BOARD OF ADJUSTMENT OR MUNICIPAL LAND USE BOARD

The board votes on every land use/zoning application. The vote will either approve or reject the application. The board’s decision is contained in a document called a resolution.

MLUL, N.J.S.A. 40:55-D-10g provides:

The municipal agency shall include findings of fact and conclusions based thereon in each decision on any application for development and shall reduce the decision to writing. The municipal agency shall provide the findings and conclusions through:

(1) A resolution adopted at a meeting held within the time period provided in the act for action by the municipal agency on the application for development.

Resolution of Approval or Denial

The law specifically indicates that the municipal agency, be it the Planning Board or Zoning Board, must make specific findings of fact and conclusions from the facts in each decision on a development application. Further, these decisions must be in writing (a Resolution). An oral decision alone is not legally sufficient.

The findings of fact are based on the testimony at the public hearing. The conclusions provide the legal foundation for the Board’s action.

The Resolution is critical following the hearing(s) before the Land Use Agency because it allows people (present and in the future) to determine what the basis of the Board’s action was. It also provides certainty as to when the application and plans were approved, and what conditions the Board imposed upon the applicant to ensure the development moved forward appropriately. While someone researching a given application may not review all transcripts or minutes of the Board hearing the application, one can be certain that the Resolution will be carefully read to determine exactly what transpired before the Board during the hearing process.

The Role of Public Hearings

Except for a few limited types of land use applications, a public hearing on all variance applications is required. The MLUL, N.J.S.A. 40:55D-10a provides:

The municipal agency shall hold a hearing on each application for development, adoption, revision or amendment of the master plan, each application for approval of an outdoor advertising sign submitted to the municipal agency as required pursuant to an ordinance adopted under subsection g. of section 29.1 of P.L.1975, c.291 (C.40:55D-39) or any review undertaken by a planning board pursuant to section 22 of P.L.1975, c.291 (C.40:55D-31).

The law cited above means that hearings be held whenever there is an application for variance relief; development; subdivision approval; or when there is a desire to adopt, revise or amend a municipality’s master plan. There are several other types of applications that require public notice which I will address on this page.

The public hearing involves the presentation of a case before an administrative agency (zoning board or planning board) which provides the applicant with an opportunity to introduce evidence and also allows for questioning, rebuttal and the cross-examination of witnesses so that a full and accurate disclosure of all facts can be presented.

The intent of this law is to require all deliberations before the board to be transparent and an adequate opportunity for all interested parties to participate in the process. The only exceptions to public hearing requirements are contained in MLUL N.J.S.A. 40:55D-47 (minor subdivisions) and MLUL N.J.S.A. 40:55D-46.1 (minor site plan). A Planning Board, if provided by Ordinance, may waive public hearing of an application if it is determined that the minor subdivision conforms to the definition of “minor subdivisions” contained in the Municipal Land Use Law. Provisions for waiving a hearing on a minor site plan are essentially the same and can be found in MLUL N.J.S.A 40:55D 46.1.

Rules of Procedure Must Be in Place for Board Hearings

The MLUL, N.J.S.A. under 40:55D-10b provides:

Each municipal agency shall make rules governing its hearings. Any maps and documents for which approval is sought at a hearing shall be on file and available for public inspection at least 10 days before the date of the hearing, during normal business hours in the office of the administrative officer. The applicant may produce other documents, records, or testimony at the hearing to substantiate or clarify or supplement the previously filled maps and documents.

This section provides that the planning or Zoning Board must make rules governing its hearings. This section also requires that maps and documents, for which approval is sought, must be on file and available at least 10 days prior to the date of the hearing. The reason for this is to make all documents available to any interested member of the public prior to the hearing so he or she can be informed about the application with reasonable advance notice.

Failure to have the maps and documents on file at least 10 days prior to the day of the hearing renders it jurisdictionally impossible for the Board to hold a hearing on that application, since a non-waivable requirement of the MLUL is this 10 day rule.

The Role of a Witness at the Public Hearing

MLUL, N.J.S.A. 40:55D-10d provides:

The testimony of all witnesses relating to an application for development must be taken under oath and the right of cross-examination is permitted to all interested parties through their attorneys, if represented, or directly, if not represented, subject to the discretion of the presiding officer and to reasonable limitations as to time and number of witnesses.

All witnesses including experts (both applicant’s, objector’s and Board’s) who appear to give testimony on an application must be sworn prior to testifying.

Following the testimony of a witness, the public has an opportunity to ask questions and cross-examine the witness regarding the items discussed during his or her direct examination.

It is within the discretion of the presiding chairman/woman to limit the time and number of questions allowed for cross-examination, especially during a controversial hearing. Since it is the Board that makes the final decision, it is up to the Board to ensure that it has received all necessary and relevant information to make a proper decision.

Are Experts Required to be Hired?

Recall that it is the applicant’s responsibility to establish the merits of his or her case. At times, applications become complex. The use of experts in large developments and in complex developments are beneficial.

If an applicant has offered the testimony and evidence of experts, it is often very helpful for the public to present experts to give “the other side of the story.” The use of experts is both beneficial and necessary. A good engineer or planner provides a wealth of information. They have the expertise to review a variance or other land use application in light of local ordinance(s) and to recommend whether the application not only conforms to ordinances, but also constitutes good planning and sound engineering. A final point is it is the Board’s responsibility to weigh the testimony of all the parties and determine which is most credible and persuasive.

Who Has the Burden of Proof to Support Their Variance and/or Land Use Approval Application?

It is applicant requesting a variance(s) or other land use approval(s) to establish the right to the approval and/or variance relief by a preponderance of the evidence.

This means the testimony and facts provide a sufficient basis upon which the Board was able to grant the approval and/or variance relief requested by the applicant. If during the public hearing on a variance application, the evidence shows that both the positive and negative criteria have been satisfied the applicant is entitled to the relief requested.

If, however, the applicant fails to supply necessary proofs for the Board to make an informed judgement, the Board can deny approval. Remember no applicant is entitled to variance relief unless the proper evidence is presented.

Decision by the Board

MLUL, N.J.S.A. 40:55D-10g provides:

The municipal agency must include findings of fact and conclusions of law in any application for development and variance relief and shall make its decision in writing for a resolution adopted at a public meeting. Let’s discuss the subject of a “Resolution”.

The Critical Importance of the Resolution in NJ Land Use Law

New Jersey law specifically mandates that both a Zoning Board and Planning Board must make specific findings of fact and conclusions in each decision on an application for development. Further, these decisions must be in writing in a document called a Resolution. An oral decision is not sufficient.

The Resolution may be the most important document that is generated as a result of hearing before the Land Use Agency. Not only does it contain the finding of fact and conclusions of law, but more importantly it allows people in the future to determine what the basis of the Board’s action was along with knowing with certainty which plans were approved and what conditions the Board at the time thought were important enough to impose upon the applicant to insure the development moved forward to an appropriate fashion. While someone looking to track the history on a given application may not necessarily review the complete transcripts or minutes of a Board, one can rest assure that the Resolution will be carefully scrutinized to determine exactly what transpired before the Board during the hearing process.

Understanding the Basics of NJ Zoning Laws

Generally, there are two broad categories of variances. The Zoning Board may grant a “d” or “use” variance to permit a use, height or type of building that is not allowed under the zoning ordinances. The Zoning Board may also grant “bulk variances” from the zoning requirements related to the location and placement of a building(s) or structure(s), or the size and configuration of a piece property. There are two different types of bulk variances, also known as the “C-1” and “C-2,” variances. (The number refers to the subsection of the Municipal Land Use Law which describes each variance.)

What is a “C-1” Variance

A “C-1” variance involves a case where because of the size, shape, topography or other physical features unique to the property, the zoning ordinance as written would place an exceptional burden or hardship upon the property owner. For example, suppose you want to build a house on a building lot that has steep topographical features on a portion of the property. To avoid disruption of the slopes, the house has to be located on the property such that the side yard setback of the house (i.e., a side yard setback is the distance required between the house and the side yard property line) will not meet municipal requirements. In such an example, the Board of Adjustment can grant a variance for the insufficient side yard setback if you demonstrate that 1) the physical constraints of the property do not allow you to meet the zoning requirements of the ordinance, and 2) the variance can be granted without harming the public welfare or impairing the intent and purpose of the Township’s Zoning Ordinance.

What is a “C-2” Variance

A “C-2” variance does not require a demonstration of hardship however, you must demonstrate that the variance being requested will promote one of the goals of the Municipal Land Use Law and that the benefits of granting the variance will substantially outweigh any detriment to granting the variance. For example, suppose you want to build a house on a property that has physical limitations, say wetlands or a high tension power line. Although the house can meet all of the required zoning requirements, you would like to place the house closer to the front property line than is normally allowed to be consistent with the setback of other houses in the neighborhood and avoid impacting the wetlands and the adverse effects of the power line. If you were to demonstrate that 1) the proposed development allows a more desirable visual environment and better utilization of the property and 2) that the benefits of blending the structure with the existing pattern of development in the neighborhood creates a more attractive appearance that would outweigh any possible detriments associated with the reduced front yard setback, then the Zoning Board is justified in granting a variance.

What is a “D” Variance

A “D” variance (often called a use variance) is different. It relates mainly to permissible uses of property. An example of a use variance is when someone wants to place an office building that is zoned strictly for single-family houses and residential use.  A use variance is difficult to obtain and confusing to understand but I’ll do my best to explain it in simple English later on in this site. You can read more about Obtaining a Variance for a Non-Confirming Use or Structure on click here.

Understanding What the Terms Positive and Negative Criteria Mean

In deciding whether to grant or deny a variance application, a zoning board must apply specific legal criteria to each case depending upon which variance an applicant is applying for. An applicant must produce evidence known as “positive criteria” and “negative criteria”. Such criteria is intended to demonstrate to the board that the variance request meets the requirements of New Jersey law justifying the grant of a variance. A variance will not be granted by a zoning board unless the applicant is able to demonstrate by way of evidence that the specific criteria required by the law applies to their property. Many times, property owners don’t know this when applying for a variance and have their application denied because of a lack of evidence to support the variance.

As the applicant, the burden of proof is on you to prove that sufficient legal criteria exists to support your application. Therefore, it is important that you know the law on zoning and what your Municipal Board is looking for to approve your application.

Fredrick P. Niemann and the attorneys at Hanlon Niemann & Wright have in their careers represented dozens of municipal zoning and planning boards and have appeared before countless planning boards and zoning boards throughout New Jersey to present applications for their clients. They have extensive knowledge of the New Jersey Municipal Land Use Act and the legal criteria that must be satisfied, to obtain a successful variance. An experienced attorney can be the difference between obtaining the variance you need to legally build on your property or losing out on your application over technicalities because you were unfamiliar with New Jersey’s complex zoning and land use laws.

If you are seeking a variance or need legal advice on any aspect of New Jersey’s zoning and land use laws, please contact Fredrick P. Niemann, Esq., an experienced, knowledgeable zoning and land use attorney. He can be reached at our toll free number, (855) 376-5291 or by email at fniemann@hnlawfirm.com.

He will be able to walk you through the process in a clear and understandable way.

Written by New Jersey Zoning Law Attorney Fredrick P. Niemann, Esq.