Conditional uses are a unique group of uses authorized by the New Jersey Municipal Land Use Law (“MLUL”). They exist only if specifically defined by a municipality in its zoning ordinances. Therefore, what may be identified as a conditional use in one town may not even be permitted in another. Generally, municipalities adopt conditional use ordinances to regulate schools, houses of worship, hospitals, and gasoline stations.
An ordinance defining a conditional use is only valid if it enumerates each condition attached to the use. Examples of conditions normally found include setback limitations, height restrictions and landscaping or screening standards. If a condition is not particular and objective, the ordinance itself can be stricken by a court if challenged. For example, a court invalidated an ordinance that included a condition that sought to ensure that the use “will not be detrimental to other properties.” Such a condition was considered arbitrary and vague.
If the application satisfied each condition in the ordinance, the use will be permitted as a matter of law. This determination is made by the Planning Board during a public hearing following a properly filed land use application. If the proposed use cannot satisfy each and every condition, an applicant would be required to secure a use variance before it could establish the use on a piece of property.
If you are interested in knowing whether your proposed use will meet every condition in a municipality's zoning ordinance, you are encouraged to contact Lavery, Selvaggi, Abromitis & Cohen, P.C. to find out. Our lawyers have vast experience in representing applicants who have successfully been granted approvals for conditional uses.