A conditional use is a use that is permitted in a zone district if it satisfies the conditions a governing body attaches to that use. If all of the conditions are satisfied, the use is permitted as a matter of law. But what happens if you cannot meet one or several of the conditions but still want to develop the property with the use?
Fortunately, the New Jersey Municipal Land Use Law (“MLUL”) recognizes this possibility and authorizes a land use board to grant relief that will allow the use. Specifically, you may apply for a conditional use variance as per Section 70(d)(3) of the MLUL. This provision allows a land use board to approve the use even if all of the required conditions cannot be met.
To receive such a variance, the applicant must satisfy the positive and negative criteria. The burden of satisfying the positive criteria is not as strict as it is for a d(1) variance which allows a use that is not permitted under any condition. Courts in New Jersey have treated a conditional use variance differently because the use is permitted in the zone albeit under certain conditions. An applicant seeking a conditional use variance must only convince the land use board that the property is still particularly suited, despite the failure to meet all the conditions. The applicant must show that the use can still appropriately function on the property, notwithstanding the deviations from one or more of the required conditions.
For instance, if one of the conditions for the use requires a minimum number of parking spaces and an applicant cannot provide those spaces, he may be able to secure the variance by demonstrating that the site will be able to accommodate parking despite the shortfall. This could be accomplished by showing the availability of on-street parking or the availability of a public parking lot in the immediate vicinity.
Of course, the applicant must still demonstrate that the conditional use variance can be granted without a substantial detriment to the public good. In other words, the applicant must show that there will be no harmful impact on surrounding properties if the variance is granted. He must also demonstrate that the variance will not substantially impair the intent and purpose of the municipality's Master Plan or zoning ordinances.
If you are looking to construct a conditional use on your property but cannot meet one of the required conditions, we would encourage you to contact our firm to discuss the likelihood of being able to secure a conditional use variance. Our lawyers have represented many similarly situated people and can recommend the proper course of action for you to follow.