Obtaining a Variance for a Non-Conforming Use or Structure

Understanding What is a Non-Conforming Use or Structure

Nonconforming uses or structures are those which were legally permitted and in existence prior to a municipality adopting an ordinance which now prohibits such uses or structures. Generally speaking, New Jersey law protects property owners from losing their rights to use and occupy their property and the value of their property because of unreasonable land use regulation(s) that prohibit or unreasonably impact the value of their land. The owner of a pre-existing non-conforming use or building has the legal right to continue indefinitely their previously lawful use of the land.

When disputed, a Municipal Zoning Board is authorized to determine whether a structure or use qualifies as a pre-existing, non-conforming use or structure. Such a request may come before the board by the owner of the alleged nonconforming use or structure as an application for certification confirming the use or structure as a legally protected pre-existing non-conforming use and/or structure, or when an objector challenges the continued active use of the property and/or structure. When this occurs, the Zoning Board will decide whether the use or structure does in fact qualify as a pre-existing non-conforming use or structure. The Zoning Board must ask what the use of the property was at the time the new zoning ordinance was established which now prohibits it. If the use or structure today is the same or substantially similar to what it was back when the ordinance permitted it, it will be qualified as a pre-existing nonconforming use. A zoning board review may also occur when a property owner seeks a minor alteration or expansion of a pre-existing, nonconforming use. If such a case, a D(2) variance must be requested and the Zoning Board must analyze whether the applicant has shown sufficient “special reasons” under the D variance requirements of the municipal land use law (see discussion of a “D” variance).

Obtaining a Variance For a Non-Conforming Use or Structure Part 1

Non-Conforming Variances Part 2

Preexisting, nonconforming uses are not allowed to be abandoned then automatically reactivated by the pre-existing or new owner. Once the use or building is deemed abandoned, the property’s legal protection from the present zoning ordinance is gone. Additionally, destruction of the nonconforming use or building, whether by design or by accident (i.e., fire, hurricane, lightning, etc.), also terminates its legal status as a pre-existing, nonconforming use. While a structure or use is allowed to be maintained indefinitely if it is considered pre-existing and nonconforming, an owner may not enlarge or materially modify the use.

Fredrick P. Niemann Esq.

Pre-existing nonconforming structures and uses are a complicated area of land use law in New Jersey. It is important that you seek an experienced New Jersey attorney to ensure that you are allowed to continue using your property as you always have, despite any recent changes in zoning ordinances.

Please contact Fredrick P. Niemann, Esq. if you have any questions regarding land use ordinances or a pre-existing, nonconforming structure or use.

He can be reached at our toll-free number (855) 376-5291 or by email at fniemann@hnlawfirm.com. He welcomes your inquiries.



Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Zoning Law Attorney