Zoning regulations divide the local area into “zones” or “districts” and determine what activities are permitted in each one. But a single zone can include a large area, and certain activities may be perfectly acceptable in some parts of the zone, but not all of it. In a similar vein, some activities may be detrimental to the character of the area when conducted in one manner, but not at all detrimental when conducted in a different manner.
That’s where conditional uses come into play. Conditional uses can, if the locality desires, be specified in the zoning ordinance. That means that the specified use would be allowed throughout the zone, but only if it was conducted in accordance with various conditions, also specified in the ordinance. Examples include home occupation being a conditional use in a residential zone, and construction of two-family homes being a conditional use in a one-family zone.
The Conditional Use Concept under New Jersey Law
For something so simple to describe, this subject can extremely complicated under the land use regulation system employed in New Jersey. The state’s Municipal Land Use Law (MLUL) governs the state’s regulation of zoning and other aspects of land use. The MLUL specifically allows, but doesn’t require, that local zoning laws can provide for conditional uses, as long as the local law also contains “definite specifications and standards” for approval by the planning board. These standards must be definite and certain enough that applicants for conditional use permits know the “limit and extent” of the conditions.
The courts have characterized conditional uses as hybrids—neither allowed uses nor prohibited uses. They are, in simple terms, “allowable if” the conditions specified in the zoning law are fulfilled.
Conditional Uses versus Variances
Conditional uses are different from variances: variances are needed when the proposed use is prohibited by the zoning law, with the focus on why that use would not harm the zoning plan. Conditional uses, on the other hand, have been “preapproved” in a sense, with the focus shifting from whether the use should be allowed at all to whether the applicant has shown that the specified conditions have been met.
How Complicated is the System in Practice?
It’s hard to overstate how complicated the issue may become. Conditional uses are granted by the planning board, variance by the zoning board. In fact, the MLUL specifically provides for requests to be allowed a conditional use despite not fulfilling the prescribed conditions as one type of “D variance.” In other words, if the conditional use application is denied, applicants then have the option of going to the zoning board to seek a variance.
The problem that has popped up in several localities, and which has produced considerable amounts of litigation, is whether the zoning ordinance provision for conditional uses satisfies the state law requirement that the standards for determining when a conditional use should be granted be specific and clear enough to tell the landowner the “limit and extent” of the conditions. Many local ordinances that have tried to describe the standards in vague generalities have simply been declared invalid. That has the same effect as if the local ordinance simply didn’t allow conditional uses—the applicant is left to apply for variance from the zoning board.
There’s no substitute for experience when it comes to navigating the conditional use maze. Even the simplest cases require analyzing (1) whether the zoning ordinance provides for a conditional use; (2) if so, whether the conditions are stated with enough specificity and clarity to be compatible with the MLUL; (3) whether the conditions listed in the ordinance have, in fact, been satisfied by the proposed use.
With 20 years of New Jersey real estate law experience, the lawyers of Barnes Law Group, LLC, can guide you through the process with minimum pain and maximum chances of succeeding. And if your application for a conditional use is rejected, we can help if you decide to seek a variance from the zoning board. We have offices located for your convenience in North Wildwood and Egg Harbor Township. Call us today.