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“C” Variances

     Every town in New Jersey has standards for each zoning district that you must follow when deciding where to build a structure on a piece of property. There are setback requirements that limit how close the building can be to the street. There are rules that restrict how close you can erect a building near your side yard. There are also limitations on building height, the amount of asphalt or concrete you can install and the size of the lot itself.

     These restrictions are commonly known as bulk requirements. Towns adopt bulk requirements to ensure that the development in a given area will be orderly and attractive. But what happens if you cannot develop property in accordance with the applicable bulk requirements? Are you prohibited from building?

     The short answer is “no”. The New Jersey Municipal Land Use Law (“MLUL”) recognizes that every property is unique and there are times when exceptions must be given. The board of adjustment is authorized to grant exceptions. These exceptions are known as “C” variances, because the standard that dictates the board's decision to grant the variance set forth in a subsection (“C”) of Section 70 of the MLUL.

     There are actually two different provisions you can rely upon when seeking a “C” variance. The C (1) variance is justified when there is a hardship confronting the developer because of the exceptional narrowness, shallowness, shape or exceptional topographic conditions of the property. The developer must be facing an extraordinary and exceptional situation arising from the nature or conditions of the property or any structure already lawfully existing on it.

     Under the C (2) standard, a variance is permitted when one of the purposes of the MLUL would be advanced from a deviation from the bulk requirements and the benefits from the variance outweigh any the detriment to the public good. Importantly, the benefit from the grant of a C (2) variance cannot benefit the property owner only. Instead, it must actually benefit the community and serve as a better zoning alternative for the property.

     Even if you believe you meet one of the two standards above, it is also important that the “C” variance cannot impose a substantial detriment the public good or a substantial impairment to the intent and purpose of the township's master plan or zoning ordinances. Substantial detriment to the public good involves a consideration of the impact the variance will have on nearby properties. You must be certain that your development proposal will not damage the character of the surrounding neighborhood. Further, the variance you are seeking must not impair the intent of the master plan or the zoning ordinances in such a manner so as to undercut the governing body or planning board's authority to zone.

     Deciding if you need a “C” variance and, if so, which of the two standards would be most appropriate is not an easy task. It requires the skill and expertise of a lawyer who has experience in handling many similar applications in the past. Fortunately, Lavery, Selvaggi & Cohen have a number of attorneys with that knowledge who are available to assist you and ensure that your development proposal will be successful.