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D(1) Use Variance

Sometimes a property owner seeks to use his property in a way that is not permitted by the municipality's zoning ordinances.  For instance, he may want to convert the second floor above a detached garage into an apartment only to discover that apartments are not allowed in the zone district.

When this occurs, the owner must either abandon the project or apply for a D(1) use variance.  Section 70(d)(1) of the Municipal Land Use Law (MLUL) describes this type of use variance as a departure from the zoning requirements to permit “a use or principal structure in a district restricted against such use or principal structure.”  In many ways, a use variance can be thought of as an exception to the municipality's zoning ordinances.

To obtain for D(1) use variance, the owner must apply to the appropriate land use board and demonstrate that he can successfully address both the positive and negative criteria.  Satisfying the positive criteria requires proof that there are special reasons to justify the land use board's grant of the variance.  Special reasons are tied to a showing that the proposed use will promote one of the purposes of zoning as listed in Section 2 of the MLUL.  For instance, the owner may present evidence that his proposed use will promote public health, safety, morals and general welfare.  Or he can show that his proposed use will secure safety from fire, flood, panic or other natural or man-made disasters.  Importantly, there are a limited number of uses that are so intrinsically good that they are deemed inherently beneficial and automatically satisfy the positive criteria.  Such uses include churches, schools and hospitals.

Regardless of whether the proposed use is inherently beneficial or not, the owner must also show that the use can satisfy the negative criteria.  The negative criteria consist of two parts.  One, it must be shown that the use will not be a substantial detriment to the public good.  Two, it must also be demonstrated that the use will not substantially impair the intent and the purpose of the municipality's master plan or its zoning ordinances.

Whether a proposed use is a substantial detriment to the public good is a fact sensitive question.  When answering that question land use boards focus their attention on the effect the proposed use will have on surrounding properties or the neighborhood.  For instance, will the use increase traffic or noise.  When the land use board is considering whether the proposed use will substantially impair the master plan or zoning ordinance, it looks at whether the use will deviate so much from the zoning ordinance that the grant of the variance would be the same as rezoning the property.  For instance, granting a use variance to allow a fast-food restaurant in a residential neighborhood would be such a departure from the ordinance requirements that most land use boards would not grant the approval unless the municipality first changed its ordinance to allow the restaurant as a permitted use in the zone.

Importantly, an application for a D(1) use variance will require the services of a licensed professional planner.  A professional planner offers expert testimony to prove that there are special reasons justifying the proposed use and that the use will not substantially impair the public good, the zoning ordinances or the master plan.  Naturally, retaining an attorney who has experience in representing clients who have applied for use variances is also an important consideration.  Lavery, Selvaggi has such attorneys who can provide an owner with the invaluable insight into the application and approval process.