Municipal Land Use Decision-Making Responsibilities

Now that hearings are underway before the Zoning Board of Adjustment for preliminary and final site plan approval for the 13-acre United Water property there have been questions regarding what body or board makes determinations for zoning, subdivisions, variances and more. Patch has prepared an easy-to-read reference guide on which body or board makes the final determination:

The Role of the Planning Board: A planning board is responsible for reviewing all proposed subdivisions and proposed site plan developments. In addition, planning boards are responsible for developing and periodically updating a town’s Master Plan. The board has exclusive jurisdiction to make recommendations with respect to the “Official Map”; hears and decides conditional use applications and makes recommendations with respect to the capital improvements program of the municipality. 

The Role of the Zoning Board: In contrast, a Zoning Board of Adjustment is primarily responsible for the granting of variances from zoning regulations on proposed projects. This includes hearing appeals on administrative issues, and adjudication of a matter brought directly to the board for disposition that includes site plans or subdivisions as an ancillary issue related to the variance sought. If that new kitchen you want to build causes your building to exceed the maximum coverage requirement, you would go to your zoning board. If the deck you want to add juts into the side yard space, you would go to the zoning board to seek permission to vary from the regulation.

To clear up any confusion, here is a comprehensive breakdown of a municipality's decision-making responsibilities as defined under the N.J. Municipal Land Use Law. 

*D(3) variance – A conditional use variance, meaning that under certain conditions a use or a building is permitted provided all of the specified conditions listed in the ordinance are met. If one or more of the conditions is not met, then a conditional use variance is required.

**D variance -  Required when an applicant seeks a change in land use and if the proposed height of the buildings exceed the town's requirements. For a "D variance," special reasons must be shown:

• "Inherently beneficial" to the public good. Low income housing falls under this category. 
• "The property is particularly suitable for the proposed use." Showing a site is particularly suited for a use involves showing that the municipality will benefit by placing the building where it is proposed, despite the fact that the local zoning ordinance prohibits that use in that particular location.
• The applicant would suffer "undue hardship" if compelled to use the property in conformity with the permitted uses in the zone. The undue hardship for a"D variance" involves showing that the property cannot reasonably be adapted to conforming use. This situation exists mainly in two scenarios. First, when an area is zoned exclusively for outdated uses, such as a downtown Main Street zoned for residential uses. Second, when a split-zone lot exists, such as a lot that has the front half in a commercial zone and the back half in a residential zone.

***Bulk or C variance - A “C variance” is granted when there are certain physical or topographical conditions to the property that prevent an applicant from being able to meet the zoning requirements. For example, the land is irregularly shaped. Applicant must show that they will suffer a “hardship” if the variance is not granted. The hardship cannot be financial and must apply strictly to the unique physical conditions of the property. 

The editor would like to thank the New Milford Building Dpt. for their help in answering a multitude of questions for this article.