The other major variance besides a “C” variance is the “D” variance, also known as a “use” variance. “D variances” are really complex and much more difficult to obtain. There are six different variations of a use variance from a local zoning board than a “C variance”.
They are:
- A – D(1) VARIANCE – This variance is applied for when an applicant seeks to place a use or principal structure on their property where such a use or principal structure is prohibited or restricted under the local land use ordinance.
- A – D(2) VARIANCE – Here, the applicant seeks to expand (in size or intensity) the pre-existing, nonconforming use or structure. Remember, the pre-existing use or structure is no longer considered legal but is being grandfathered and protected from municipal code enforcement in its current condition and use.
- A – D(3) VARIANCE – An application for this variance means the applicant seeks a conditional use approval. A permitted conditional use in a local zoning ordinance means that under certain stated conditions a land use or type of structure is permitted provided all of the specified conditions listed in the ordinance are met. If one or more of these conditions is not met, then a conditional use variance is required.
- A – D(4) VARIANCE – Here, an applicant seeks a variance that allows an increase in the maximum permitted square footage of a structure. This term is often referred to as the “floor area ratio of the building” (FAR).
- A – D(5) VARIANCE – This variance seeks approval to allow an increase in the permitted density (intensity) of the property. An example is a 2 family home in a single-family residential district.
- A- D(6) VARIANCE – Here, an applicant seeks a variance to allow a structure on a piece of property that exceeds the maximum height limit by 10 feet or 10%.
A “D” Variance Requires Special Reasons
When dealing with an application for a “D” variance, the Zoning Board wants to know about “special reasons”. By showing special reasons (special reasons is a legal term under the New Jersey Land Use Law), an applicant is satisfying the positive criteria required for a “D” variance. Special reasons mean “the property is particularly suitable for the proposed use” thus serving the general welfare of the municipality. Don’t forget, however, that the negative criteria must also be addressed, meaning an applicant seeking a “D” variance, in addition to showing special reasons, must also show that the variance can be granted without causing a substantial negative detriment to the public good and won’t substantially impair the intent and purpose of the municipal zoning ordinance and municipal master plan.
For “D variances”, special reasons can be shown in three ways.
First, the use is “inherently beneficial” to the public good. An inherently beneficial use is generally a use that promotes the general welfare of the community. These uses are considered to be of universal value needed by the community. Some examples are hospitals, schools, child-care centers, etc. Uses that may be attractive because they provide jobs, services, products, and recreation are usually not deemed by themself inherently beneficial.
If the “D” variance application is for a use that is not inherently beneficial, there are two remaining ways to show special reasons to satisfy the positive criteria. Showing a site is particularly suited for a use involves showing that the municipality will benefit by placing the building where it is proposed, despite the fact that the local zoning ordinance prohibits that use in that particular location. Because the site must be uniquely suited for the use, a prerequisite is showing that other locations in the surrounding area are not as suitable for the use. For example, an applicant may be allowed to build a parking lot for employee parking next to his office, despite the fact that parking lots are prohibited in the zone because the site is particularly suited for a parking lot due to the fact that adequate space is not conveniently available elsewhere and the lot where the parking lot is placed had previously been a gas station.
Undue Hardship as a Basis for a “D” Variance
The final way for an applicant to obtain a “D” variance is to show that special reasons exist because the applicant will suffer “undue hardship”, if compelled to use the property in conformity with the permitted uses in the zone. This is not the same as the hardship standard for a “C” variance and is a much harder standard to satisfy. The undue hardship for a “D” variance involves showing that the property cannot reasonably be adapted to a conforming use. This situation exists mainly in two scenarios. First, when an area is zoned exclusively for outdated uses, such as a downtown main street zoned for residential uses. Second, when a split-zone lot exists, such as a lot that has its front half in a commercial zone and its back half in a residential zone. Courts have made it clear that an inability to make the most profit is not a sufficient reason to justify a “D” variance based on undue hardship circumstances.
Applying for a “D variance” is complicated. It involves introducing into the legal records before the board specific proofs that must be established in order to get your variance. Courts have stated that a “D” variance will always be the exception, rather than the rule. It is important you have an experienced land use and zoning attorney who knows exactly what to show the board to get your variance application granted.
Fredrick P. Niemann Esq.
Fredrick P. Niemann, Esq. and the attorneys at Hanlon Niemann and Wright have represented countless clients in front of Planning Boards and Zoning Boards to obtain variances. With 30+ years of experience, they have the knowledge and familiarity necessary to go in front of a board seeking a “C” or “D” variance.
If you have any questions regarding a variance, please contact Fredrick P. Niemann, Esq. at our toll-free number (855) 376-5291 or email him at fniemann@hnlawfirm.com, he welcomes your inquiries.
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Zoning Law Attorney