There are two different approaches to take when applying for a “C” variance from your municipal zoning board.
NJ requires that you offer evidence (a/k/a proof) to justify the granting of variance relief. The term “hardship” is a “huge” legal term to understand when seeking a “C” variance. A “C” variance application means you will suffer a “hardship” if you are not granted a variance from the municipality’s zoning ordinance. This hardship is caused because of the unique physical or topographic features of the property. Technically, hardship does not include the personal or financial hardship you will suffer if your variance is denied.
Proof of hardship can be shown by the:
- Narrowness, shallowness, or irregular shape and size of your property; or
- An exceptional topographic condition(s) found on your property; or
- Other unique conditions or physical features affecting your property
A good example to illustrate when a “C” variance is needed involves an applicant who cannot meet the setback requirements to build a structure (i.e., the addition to a home, commercial building, pool, storage shed, etc.) based on the fact that the lot he or she is seeking to build upon is triangular in shape, therefore no matter where he or she places the structure, it will be closer to his or her property line than permitted under the municipal ordinance. In this example, a property owner can apply for a C (1) variance based on the irregular (triangular) shape of the property. By the way, the example listed above can include wanting to build a brand new home or commercial structure on an undersized piece of property.
Besides Proof of Hardship, You Must Overcome the “Negative Criteria”
There are an additional series of proofs that must be established by an applicant to allow a zoning board to grant a C (1) variance. These additional proofs are known as the “negative criteria”. Negative criteria involves showing (1) that the variance can be granted without causing a substantial detriment to the public good, and (2) that the granting of the variance will not substantially impair the intent and purpose(s) of the municipal zoning plan and ordinances.
An alternate approach to consider when your land does not qualify for a C (1) variance is to apply for what is known as a C (2) variance, also known as a “flexible C variance”. This type of variance application involves persuading the zoning board that granting the variance will actually benefit the community by improving local zoning and planning. In order to prove a C (2) variance, one must demonstrate that:
- The variance is needed for a specific piece of property;
- The proposed variance advances the purposes of the Municipal Land Use Law; and
- The benefits of granting a variance from the local zoning ordinance will substantially outweigh any detriment that may (will) result from approving the variance.
To satisfy the requirements of a C (2) variance, one must prove by clear and persuasive evidence that the need for the variance falls within one of the specific purposes listed in the municipal land use law. The Municipal Land Use Law lists 15 separate benefits and objectives that all municipal zoning ordinances are required to address that relate (generally) to the public health, safety, appropriate population densities, desirable visual environments, etc.
An example of a “flexible C variance” is when a small setback variance of several feet in a back yard is needed to allow a house (or addition) to be built in scale and harmony with the character of the neighborhood. Here the application will relate to a specific structure (the house in my example). The proofs to be offered will address how approval of the application will maintain an appropriate population density (a goal of the Municipal Land Use Law), and how it fits into the character of the community. These benefits might (if clearly proven) substantially outweigh any detriment that a small setback variance would cause. The negative criteria is satisfied if the variance is shown not to cause substantial detriment to the neighborhood and does not substantially impair the intent and purpose of the municipal zoning plan.
You Need a Majority Vote of the Zoning Board for a “C” Variance
In order to be approved, all C variances require a majority vote by the local Zoning Board of Adjustment. Obtaining a majority vote and thus your C variance can be complex. Planning Boards and Zoning Boards will demand evidence pertaining to your property. If you are unfamiliar with what they are looking for, you are likely to have your variance application denied. An experienced New Jersey zoning and land use attorney will know what to show the Board in order to put you in the best possible position to obtain your C variance.
Fredrick P. Niemann Esq.
Fredrick P. Niemann, Esq. and the attorneys at Hanlon Niemann & Wright have over 100 years of collective experience in applying for variances before both Planning Boards and Zoning Boards. We have represented both applicants and objectors to applications. We have extensive knowledge of what a zoning board will be looking for when determining the approval/denial of a variance application and the specific legal criteria related to each.
If you need a (C) variance from your local Planning Board or Zoning Board, please do not hesitate to
Contact Fredrick P. Niemann immediately if you have any questions. He can be contacted at our toll-free number,
(855) 376-5291 or by email at fniemann@hnlawfirm.com and welcomes your inquiries.
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Zoning Law Attorney