NJ Land Use Law: The Basics By Martin Newmark

New Jersey property owners who wish to develop their property must first comply with a body of regulations governing the development of land. These are generally referred as Land Use Regulations. These Regulations are authorized and governed by legislation known as the Municipal Land Use Law, referred to as the MLUL. The MLUL authorizes individual municipalities to adopt regulations generally known as Land Use Ordinances which dictate what may be built on a particular piece of property and the procedure that must be followed before permission to build will be granted by the appropriate municipal official.

Of the Land Use Ordinances, the Zoring Ordinance is of primary importance. The Zoning Ordinance separates the municipality into distinct Zoning Districts and describes what uses may and which uses may not take place in those districts. As a result most municipalities are separated into Residential Zones, Commercial Zones and Industrial Zones. The Zoning Ordinances further refine the districts by describing in which residential districts multi-family dwellings may be permitted and in commercial districts which areas may be devoted to office use and which areas may be devoted to retail or other commercial uses. In addition to use restrictions, the Zoning Ordinance contains what are referred to as bulk or dimensional restrictions which place specific limitations on minimum lot size for any particular use in each zoned district as well as minimum set backs, side yards and height for any building that may be constructed.

Should a land owner wish to build a single family residence in a zone permitting single family development on a lot which conforms to the bulk or dimensional requirements of the local Ordinance, all that is required is an application to the building department and an appropriate permit will be issued. Where, however, multi-family, commercial or industrial construction is proposed, the project must be reviewed by the local Planning Board if the use proposed on the site conforms to the requirements of the Zoning Ordinance. In the event that the use proposed is not a permitted use in the Zoned District the property owner must make application to the Zoning Board of Adjustment for relief from the strict application of the Zoning Ordinance. In the event that any of the dimensional requirements of the Zoning Ordinance cannot be met, bulk variance relief will be required from the appropriate Board.

As indicated, there are two categories of variances that may be required before a proposed development may be permitted. Before a Use Variance may be approved by the Zoning Board of Adjustment, a hearing must be conducted on written notice to all of the property owners who live within 200 feet of the property and notice to the general public by publication in a local newspaper. At the hearing the proposed development is presented to the Board by the Applicant or his or her attorney who must persuade the Board that the statutory criteria as set forth in the MLUL warrants a deviation from the strict terms and conditions of the Zoning Ordinance. Generally, in order to prevail, the property owner must demonstrate that the property is either inherently beneficial, that is to say by its very nature it serves the public interest such as a school, a house of worship or a hospital, or that the use proposed will in some way promote the general welfare and that in order to promote the general welfare the use must be situated at the location proposed. In either case, the Board must also be satisfied that the so called negative criteria of the MLUL have been satisfied. In order to make that showing, the Applicant must demonstrate that whatever is being proposed will not cause substantial harm to the neighborhood or undermine the intended purpose of the Zoning Ordinance.

The successful presentation of a Use Variance Application can be a major undertaking. In order to make a showing which will satisfy the Board that a substantial deviation from the use provisions of the Zoning Ordinance is warranted, the Applicant will ordinarily be required to present the testimony of a professional planner, an architect, a professional engineer, a traffic engineer and any number of other experts who may be in a position to persuade the Board that the particular use being proposed will on the one hand be in the public interest and on the other not cause substantial harm to the neighborhood or the Zoning Ordinance itself. Frequently, a Use Variance Application will become an adversarial proceeding when interested neighbors, either individually or through counsel, appear at the hearing and oppose the Application.

As indicated above, in the case of permitted uses, variance relief may be needed if the dimensional requirements of the Zontng Ordinance cannot be satisfied. In that case, the Application would be considered by the Planning Board. Dimensional variances may be heard by the Planning Board in the context of sub-division applications where a property owner proposes to develop a tract of land by dividing it into separate parcels usually for the construction and sale of single family homes. If all of the dimensional requirements of the Ordinance cannot be satisfied, the Planning Board would be authorized to grant a variance to permit such a deviation if it were satisfied by the evidence presented either that a hardship exists or that the benefits resulting from the deviation from the Zoning Ordinance requested outweighs any potential detriment. The hardship contemplated by the MLUL which would justify the granting of the variance is not a personal or financial hardship. Rather, the hardship must result from something inherent in the property itself, for example its topography, which as a practical matter prevents strict compliance with the terms and conditions of the Zoning Ordinance.

The Plaruring Board may consider dimensional variances both in the context of residential development and in the context of commercial or industrial development in the course of considering an application for Site Plan Approval for projects in that category. As in the case of use variances, dimensional variances for commercial or multi-family projects will frequently generate opposition. Similarly, Site Plan Applications involving variances will require the presentation of qualified professionals in order to make the case for the variance.

Subdivisions and site plans which are fully conforming must still be approved by the Planning Board in most cases and although the absence of variance relief will usually result in a less controversial presentation and will increase the likelihood of an approval, major subdivisions and major site plans ordinarily require the presentation of proofs through professionals as well as the submission of appropriate documentation which requires the employment of professionals.

Zoning Boards of Adjustment and Planning Boards require that corporations or other entities be represented by attorneys licensed to practice law in New Jersey to make their presentations. Individuals are not required to engage counsel for that purpose but as can be seen, the presentation of a subdivision or site plan application with or without use or dimensional variances is a complicated legal procedure which, in the ordinary case, is best handled by an attorney.

The members of the firm of Broderick, Newmark & Grather have many years of experience in the field of Land Use Law and have successfully presented many substantial residential, commercial and industrial applications before planning boards and zoning boards of adjustment throughout the State of New Jersey and particularly in Morris County. The firm is available to assist you on all matters of Land Use Law. Please direct any inquiry in the area of Land Use Law to the attention of Martin Newmark by phone, fax or e-mail.