Zoning FAQ

1. The Zoning Officer refuses to give me a zoning permit and says that I will have to obtain a variance. Can the Mayor or Township Committee members order the Zoning Officer to give me a variance?

• No. In fact, under some circumstances it may even be a violation of the criminal code to do so. The best advice we can give you if you are unhappy with the Zoning Officer’s decision is to contact the Director of Community Development & Planning first. The Director will review the file and consult with the Township Administrator and/or Municipal Counsel. If you are unhappy with the Director’s conclusion then you should contact the Township Administrator’s Office.

2. My neighbor and I are having a dispute regarding the boundary line of our properties. Can the Zoning Office help me?

• No. This is not a zoning issue. Boundary disputes are personal legal matters and are not within the jurisdiction of the municipality (Note: Unless a municipal boundary is the subject of the problem). You should consult an attorney or your title company to assist you.

3. My neighbor’s tree hangs over the fence into my rear yard. I am afraid that a tree limb will fall into my yard and cause damage. Can the Zoning Office help me?

• No. This is not a zoning issue. You should consult an attorney as this is a private legal dispute and the municipality has no control or jurisdiction.

4. If I make a zoning complaint about a particular property or person does my name or written complaint become public record?

In most cases, unless there is an active criminal investigation, your zoning complaint is a public record and may be released upon request to persons who request a copy.

5. Can I make an anonymous zoning complaint?

• Yes. You may contact us anonymously but your zoning complaint will not be regarded as founded in nature unless it is verified by the Zoning Officer. Our experience suggests to us that anonymous complaints usually are not as credible as regular complaints. We will accept your anonymous report and it will be reviewed. A file will only be opened if the complaint is independently confirmed by the Zoning Officer.

6. What is an Administrative Officer Error Appeal?

• N.J.S.A. 40:55D-70(a.) This provision is known as the Administrative Officer Error appeal. For instance, if a use allegedly became nonconforming prior to the preceding year the Zoning Officer cannot issue a zoning permit confirming the existence of the nonconforming use. The owner of the nonconforming use must appeal the denial under this provision to the Land Use Board.

• N.J.S.A. 40:55D-70(b.) Interpretation of the land use ordinance. For example, a zoning ordinance may state that a particular land use district permits manufacturing and defines that word with some examples of manufacturing uses. However, the applicant intends to operate a manufacturing establishment which is not specifically defined in the ordinance and does not fit easily into any of the provided for examples of manufacturing. Nonetheless, there is no dispute that the activity constitutes manufacturing. The applicant could (and should) in this case file an application requesting relief in the form of an interpretation of the land use ordinance in order to determine whether the proposed use is permitted in that zoning district. An interpretation of the zoning map is also permitted.

8. What is a special questions application?

• N.J.S.A. 40:55D-70(b.) Special questions application. This application typically comes in the form of a question whether a proposed use is similar to or has the same general characteristics of any of the uses specifically permitted in the subject zoning district. This issue may involve an interpretation of the zoning ordinance, but it requires a noticeably more intense level of comparison between the proposed use and the permitted use than does an ordinary interpretation case. For example, a zoning district may specifically permit retail stores, hotels, hair salons, and bakeries but does not list a bowling alley as a permitted use. The applicant could apply for relief under this section requesting a determination that a bowling alley is characteristically similar to the enumerated permitted uses.

 9. What is a (c.) (1) or hardship variance?

• N.J.S.A. 40:55D-70(c.)(1) Hardship variance. This variance may be sought where an applicant can show that strict application of the ordinance, where there are unique and exceptional characteristics of the subject property, would result in undue hardship to the applicant. In Ric-Cic Co. vs. Bassinder, 252 N.J. Super. 334 (App. Div. 1991), the court held that denying setback and off-street parking variances would create hardship where they would make development of the applicant’s property impossible under the circumstances. The applicant was rebuilding a restaurant on an ocean pier which had no space for parking or for the required setbacks. Note: Personal hardship is not grounds for granting the variance. Nor is a self?created hardship grounds for granting the variance such as when an applicant constructs a dwelling in ignorance and in violation of the required setbacks. Negligence or flagrant violation of the zoning laws will not be rewarded with a variance. The proper analysis focuses upon the hardship arising out of the conditions peculiar to a specific piece of property.

10. What is a (c.) (2) or substantial benefit variance?

• N.J.S.A. 40:55D-70(c.)(2) Substantial benefit variance. Undue hardship is not a criteria under this variance. Rather, in addition to other enumerated criteria, the applicant must demonstrate that a purpose of the Municipal Land Use Law would be advanced by a deviation from the zoning ordinance. For example, where a stream crosses a rear yard a (c.)(2) variance may be approved to allow for adjustment of setbacks in order to protect the stream and prevent the degradation of the environment through improper use of land (i.e., one of the purposes of the Municipal Land Use Law).

11. What is a (d.) (1) or use variance?

• N.J.S.A. 40:55D-70(d.)(1) Use variance. In addition to other criteria, the applicant must demonstrate that there are special reasons to deviate from the zoning ordinance. For example, a marina use might be found suited for waterfront property in a residential zone. Likewise, a private hospital for the emotionally disturbed might be found suited for property in a residential zone. Generally, there may be special reasons for the grant of a (d.)(1) variance where the development advances a purpose of the Municipal Land Use Law or refusal of the variance might impose on the applicant an undue hardship.

12. What is a (d.) (2) or variance for the expansion of a nonconforming use?

• N.J.S.A. 40:55D-70(d.)(2) Expansion of a nonconforming use. A nonconforming use is one that was a conforming use prior to enactment of a zoning ordinance or prior to a change in an existing zoning ordinance. Such a situation arises, for instance, where an auto repair business is conforming under an existing zoning ordinance but a subsequent amendment changes the district from general business to residential. A (d.)(2) variance would be required before the owner can construct additional garage space to accommodate more cars. By way of further example, consider a business which is located in a conforming three- story building but a zoning amendment later limits building height in that zone to two stories. In this case, the owner of the building would require a (d.)(2) variance to construct a fourth floor.

13. What happens to a variance if I sell my home or business?

• Variances run with the land. This means that a variance will continue in effect as ownership of the property or business changes. However, the new owners must adhere to the terms and conditions of the original variance granted and obtain all other necessary approvals and permits as required by law. NOTE: If a use permitted by variance is abandoned the variance is abandoned as well.

14. Does the Land Use Board have to grant me a variance?

• No. When you request a variance you bear the burden of meeting a standard of proof that has been established by state statute and tested in probably thousands of reported and unreported court cases. The board will apply the relevant standard to your application and make a decision on the facts of your particular case.

Not necessarily. Each application stands on its own merits. Until the board members hear and consider the evidence it is not proper for them to pre-judge the application or appeal. Essentially, the board is a quasi-judicial body and should be respected as you would a court of law. You can expect that your application or appeal will be considered fairly but you should not expect that the result will be the same as in a similar case. No two zoning cases are exactly the same.

16. Do I need a lawyer to represent me before the Joint Land Use Board?

• Although it generally is not necessary for you to be represented by an attorney, you are strongly encouraged to consider hiring a competent land use attorney for purposes of guiding your application or appeal through the maze of procedural and substantive requirements of state law and local ordinances. A recurring complaint received from applicants whose requests for relief have been denied is that they were not familiar with the complex legal standards and burdens of proof when preparing for their hearing. Many applicants have left the hearing room disappointed and confused, feeling that an attorney could have made a difference.