Zoning Board Application Process
How does the process work?
The Zoning Board hears an application for development after it has been reviewed by the Zoning Officer, Planner or both. The application must be complete, however, a member of the Board has the right to ask for further clarification of parts of the plan.
The Zoning Board acts as a judge and jury. It is a member's responsibility to listen to all testimony, ask questions, decide the facts of a case, apply the law and make an objective decision to approve or deny an application.
An applicant must meet specific criteria contained in the MLUL by satisfying certain legal standards of proof and the burden is upon the applicant to show that he or she is entitled to the specific relief requested. Depending upon the type of variance requested, the applicant will need to prove special reasons, a balancing of the benefits, hardship or the negative criteria. Conditions may also be applied to an approval.
What is the law that guides the Board's decisions?
The Zoning Board of Adjustment hears and decides two kinds of variances, a "C" variance and a "D" variance. Variance means permission to depart from the literal requirements of the zoning ordinance. A variance relate to the future use of the land, it is not intended or authorized to remedy temporary or unique personal situations. A "C" variance is the simplest and can have less significant impact on the zoning of a municipality than a "D" variance.
Based on Municipal Land Use Law ("MLUL") and case law, the criteria to apply when making a decision for a "C" variance and a "D" variance is as followings:
There are two kinds of "C" variances; "C-1" and "C-2"; both must apply to a specific piece of property.
A "C-1" variance is sometimes called "the hardship variance". The applicant must prove hardship as outlined in the MLUL 40:55D-70C (1) where:
(a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or;
(b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or;
(c) by reason of an extraordinary situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation pursuant to article 8 of this act (40:55D-62 et seq.) would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon the developer of such a property, grant, upon an application or an appeal relating to such a property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship.
If hardship is proven, the applicant must also show that such relief from the zoning ordinance will not be substantially detrimental to the public good, and will not substantially impair the intent and purpose of the zone plan and zoning ordinance. This second criteria is called the negative criteria.
For a "C-2" variance, (see 40:55D-70c (2), proof of hardship is not necessary. Two things must be proven to receive approval for a C-2 variance:
(1) An applicant must show that the purposes of the MLUL (40:55D-2) would be advanced by a deviation from the zoning ordinance requirement and
(2) that the variance can be granted without substantial detriment to the public good and without substantial impairment of the intent and purpose of the zone plan and zoning ordinance (negative criteria).
There are six instances when an applicant must ask for a "D" variance. For a "D" variance, proof by the applicant is especially important. A "D" variance is a request to use property in a way contrary to the Township's zoning plan and should not be taken lightly. At least five members of the Zoning Board must vote affirmative for a "D" variance to be granted.
The six instances for granting a "D" variance in the MLUL (40:55-70d) are as follows: The Board shall have the power to, in particular cases and for special reasons, grant a variance to allow departure from regulations pursuant to article 8 of
this act to permit:
(1) a use or principal structure in a district restricted against such a use or principal structure;
(2) an expansion of a nonconforming use;
(3) deviation from a specification or standard pursuant to section 54 of P.L. 1975, c. 291 (C.40:55D-67) pertaining solely to a conditional use;
(4) an increase in the permitted floor area ratio as defined in section 3.1 of P.L. 1975, c.291 (c.40:55D-4);
(5) an increase in the permitted density as defined in section 3.1 of P.L. 1975, c.291 (c.40:55D-4) except as applied to the required lot area for a lot or lots for detached one or two dwelling unit buildings which lot or lots are either an isolated undersized lot or lots resulting from a minor subdivision;
(6) an increase of height which exceeds either 10 feet or 10% of the max building height permitted in the district of the principle use.
For a "D" variance, the two things that must be proven are the positive criteria, sometimes called special reasons, and the negative criteria.
There are three ways of proving the positive criteria (special reason):
(1) Occasionally, an application for a "D" variance is for a use that inherently serves the public good. Examples are schools, hospitals, public housing and sewage treatment plants. Because such a use is inherently beneficial to the public good and therefore serves the general welfare, the positive criteria or special reasons test would be satisfied. Even if the use is beneficial, the applicant still must prove negative criteria.
(2) Rarely, special reasons can be satisfied if undue hardship or economic inutility can be proven. It is important to point out that the inability to make the most profitable use of the site will not qualify as such hardship or inutility.
(3) In most cases special reasons, purposes of the Municipal Land Use Law at 40:55D-2 (see above), must be considered and proven. The most important special reason is 40:55D-2a. "To encourage municipal action to guide the appropriate use or development of all lands in this State, in a manner that will promote the public health, safety, morals and general welfare;" If number 1 or number 2 above have not been proven, then the applicant must prove that general welfare will be promoted because the proposed site is particularly suitable for the proposed use. Of course other special reasons should also be proven.
If the positive criteria has been proven, then the applicant must also prove negative criteria:
(1) The use shall not be substantially detrimental to the public good.
(2) The use shall not substantially impair the intent and purpose of the zone plan and zoning ordinance.
If the positive criteria (special reason) has not been proven, the applicant is not entitled to a variance.