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Use Variances

A use variance is best understood as an approval to use property in a manner that is not permitted by the municipality's ordinances.  The most common example involves a property owner looking to establish a retail store in a residential district.  However, section 70D of the New Jersey Municipal Land Use Law (“MLUL”) actually recognizes six (6) different types of use variances.  They include variances to allow the following:

  1. Use of property or a principal structure not permitted in the zone district;
  2. Expansion of a pre-existing nonconforming use;
  3. Use of property or a principal structure that deviates from a standard listed in an ordinance that authorizes conditional uses;
  4. Expansion or enlargement of a structure in excess of the permitted floor area ratio;
  5. Increase in the permitted density beyond the maximum density allowed; and
  6. Construction of a principal structure that exceeds the maximum permitted by more than 10 feet or more than 10%.

Any one of these six (6) use variances will be decided by a municipality's board of adjustment.  When deciding a use variance application, five (5) of the seven (7) members of the board must vote in favor of it.  In order to secure the approval, an applicant must prove his entitlement to the specific use variance requested.  While the burden of proof varies among the six (6) types of use variances, the board's focus is ultimately upon the applicant's ability to address the positive and negative criteria. 

For instance, an individual seeking a d(1) variance satisfies the positive criteria by showing that there are special reasons why the use is particularly suited for the property.  This is accomplished by proving that the use will promote the purposes of zoning identified in Section 2 of the MLUL.   However, there are some uses that have been deemed “inherently beneficial” which means that they are universally considered to be of such value that they fundamentally serve the public good and promote the general welfare.  Such uses include schools, hospitals, group homes, and renewable energy. 

An applicant seeking a d(2) variance to allow for the expansion of a lawful pre-existing non-conforming use must address the positive criteria by also proving that the proposed development will advance the purposes of zoning.  Importantly, the applicant must first establish that the use is in fact lawfully pre-existing.  This requires evidence that the use either pre-existed the adoption of the municipality's first zoning ordinances or was previously permitted but the ordinance was later amended to prohibit the use.  Very often, proof of the lawfulness of the pre-existing use or structure is more difficult than demonstrating that its expansion will promote the purposes of zoning.

A conditional use is permitted upon showing that the use will comply with certain conditions established by the municipality to authorize that use.  If all of the requisite conditions are met, the use is deemed to be permitted.  When an applicant cannot meet all of the conditions, he will require a d(3) variance.  Unlike d(1) and d(2) variances, an applicant is not obligated to demonstrate that the use will promote the purposes of zoning, but rather he will satisfy the positive criteria but demonstrating that the property can still accommodate the use despite the applicant's inability to meet a particular condition.  In other words, the applicant must prove to the board of adjustment that the property is still particularly suited for the use even though some of the conditions cannot be addressed. 

An applicant seeking a d(4) variance is looking for relief to allow for the construction of a building that exceeds the municipality's floor area ratio.  The floor area ratio is the sum of all floors of a building or structure compared to the total area of the site.  When an applicant's proposed building cannot meet the floor area ratio, the positive criteria is similar to someone seeking a use variance for a conditional use.  The applicant must prove that the property can reasonably accommodate any problem associated with the structure being larger than what the floor area ratio permits.   

An applicant seeking a d(5) use variance from the municipality's density restrictions must also satisfy the positive criteria. Generally, this is a more relaxed standard that requires an applicant to merely show that the property can accommodate a greater density than what is permitted.  Similarly, someone needing a d(6) variance for height must also prove that the taller structure can be reasonably accommodated on the property despite its height.

Regardless of the type of use variance sought, an applicant always has the burden of proving that the relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.  A consideration of the substantial detriment to the public good focuses upon the use variance's impact on nearby properties.  The board of adjustment must determine whether the impact will result in such damage to the character of a given neighborhood or area as to constitute substantial detriment.  If the board can determine without arbitrariness that the impact is not substantial and the benefits from the use variance outweigh any inconsequential detriment, a use variance will stand. 

The board's examination into whether a use variance will be a substantial impairment to the master plan and zoning ordinances focuses upon whether the grant of the variance will represent an arrogation of the governing body and planning board's authority to adopt the master plan and zoning ordinances.  The grant of a use variance cannot be viewed as the improper exercise of a legislative function by a board of adjustment. 

Obviously, determining which use variance may be required and navigating the approval process is both complicated and confusing.  An individual who believes he may require a particular use is best served by retaining an experienced land use attorney like those at Lavery, Selvaggi & Cohen.  Without the benefit of their expertise, an individual can waste considerable resources and time in trying to navigate this process.