You want to build a small structure on your property, but the property is so oddly shaped that no matter where you put the building it will violate the local ordinance requiring that buildings be set back a minimum of 50 feet from the boundary line. The best you can do is 38 feet from the boundary. Are you stopped forever from building on your property?
The answer is probably not, but you really should get the services of an experienced New Jersey zoning regulations attorney to give yourself the best chance of establishing that you’re entitled to a variance from the setback requirement.
New Jersey’s Zoning System
New Jersey’s Municipal Land Use Law (MLUL) sets up the basic framework for land use regulation in the state, but leaves the specific details to local governments, which are responsible for developing master plans and zoning laws, and deciding whether specific projects comply with those laws.
So if you want to do something that the local zoning law doesn’t allow, you need to get a variance from the local authorities, but the basic standards for when a variance is appropriate are set by the state in the MLUL.
C and D Variances
The Municipal Land Use Law (MLUL) specifies two types of variances, C and D, named for the section of the law that provides for them. They differ both as to the type of restriction from which a variance is sought, and the strength of the showing needed to obtain one.
C variances can be based on either:
- Hardship, a claim that the nature of your property—shape, topography, or other physical property—requires the variance to prevent you from suffering a hardship (known as a “bulk” variance)
- Benefit to the community by enhancing the overall zoning plan (known as a “flexible” variance)
- D variances are commonly known as “use variances.” The process for obtaining a D variance is more complicated than for a C variance, and they are granted less often.
The MLUL specifies six different types of D variances:
- Requests for a use or principal structure which is prohibited in that district
- Requests to expand an existing nonconforming use
- Requests to be allowed a conditional use, despite not fulfilling the prescribed conditions
- Requests to exceed the allowed floor area ratio (FAR variance)
- Requests to exceed allowable density
- Requests to exceed the allowable maximum height of the principal structure
- Obtaining either type of variance generally also requires that the applicant establish “negative criteria” by showing that the variance will not cause substantial harm to either:
- The public
- The overall purpose and intent of the zoning plan
Variance versus Nonconforming Use and Conditional Use
Variances are not the only way that landowners can use their property in ways that don’t conform to the overall zoning laws. There are also:
- Nonconforming Uses—uses that existed at the time that a zoning ordinance prohibited them; they are basically “grandfathered in” so that landowners are not retroactively punished.
- Conditional Uses—uses specifically allowed by the zoning ordinance, but only if specified conditions are met; essentially, approval is still needed, but the focus is on whether the conditions have been met, not whether the use itself is proper.
Help in Obtaining Variances in Atlantic and Cape May Counties
Obtaining a variance in New Jersey can be time-consuming and technical. Opposing an application for a variance, of course, can be just as time-consuming and technical. Whether you want a variance, want to stop a variance from being granted, or want to appeal the decision on the variance, the firm of Barnes Law Group, LLC, can lend its 20 years of real estate experience to your cause. The sooner you get help, the better. It may not be obvious, but the need to obtain a variance depends on whether the planned use does, in fact, violate the permitted uses. In essence, the variance process really begins with a serious analysis of what uses are already allowed. To learn more, call Barnes Law Group, LLC today.