If you own a lawfully created, pre-existing, non-conforming use, you are allowed to continue with that use indefinitely. But what happens if you want to expand or modify the use? Under the New Jersey Municipal Land Use Law (MLUL), you will need to get an approval from your local land use board. Specifically, you will need a d(2) use variance which is allowed as per N.J.S.A. 40:55D-70d(2) of the MLUL .
To obtain such this use variance, you must satisfy the positive and negative criteria as you would do for other types of use variances. Importantly, you do not have to prove that you would have been entitled to the use variance for the initial non-conformity. The good news is that the analysis of the positive and negative criteria for a d(2) variance is not as stringent as the analysis required for a variance for a use that is not allowed in the zone district.
When addressing the positive criteria, you must show that the expansion will promote the purposes of zoning as set forth in the MLUL. For example, if you can demonstrate that the expansion will improve the visual aesthetics of the property, creates safer traffic patterns, or reduces noise or odors will likely be found to satisfy the positive criteria.
You must also show that the expansion adequately addresses the negative criteria. In other words, you need to show that it will not be a substantial detriment to the public good nor will it impair the applicable zoning ordinances or the municipality's master plan. Again, a proposed expansion that improves aesthetics or safety is often found to be an improvement to the public good and to be consistent with the municipality's master plan.
If you are considering an expansion or enlargement your lawfully existing non-conforming use, it is strongly recommended that you first speak to an attorney who practices zoning and planning law in New Jerey. The lawyers at Lavery, Selvaggi & Cohen have considerable experience in this field and would be available to assist you.
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