Land Use - Variance
The New Jersey Court of Appeals found that in this matter a hearing that resulted in final site plan approval and variances, was not inadequate when compared to the amount of previous hearings held on the project. It was claimed that the hearing in question, which approved the variances, was inadequate. The court found that there was no error in granting bulk variances since the grant of the variances was grounded in the purposes of zoning, the benefits outweighed any detriments. The variances were also found to not be a substantial detriment to the good of the public and they would not substantially impair the intent and purpose of the zone plan and zoning ordinance.
Looking for confirmation that in NJ when a local community grants a land use variance it applies to the physical property in question in perpetuity and is not just granted for the duration of ownership of the property by the person or entity applying for the variance.
Stephen:
In answer to the question that you posted on our blog, variances generally run with the land. However, some localities require by ordinance that the holder of such variance act on it within a specific period of time, usually within 12 to 18 months. By "act on it" I mean utilizing the variance or starting construction on a building or structure associated with the variance. I should also note that sometimes the municipal board (either a planning board or a zoning board) may condition require that the recipient of the variance (or the recipient's assignee or successor) act on the variance within a specific period of time.
Vincent J. Mangini, Esquire
i own a dance studio in point pleasant, nj. my zoning board says i can only be opened from 4-8 on week nights and 8-6 on saturdays. i cannot grow in my business of this is the case. they will not allow me to hire more teachers. they will not allow me to park on the public street in front of my building. is this right? who should i speak to about it?
In order to answer your question fully, I would need to review the local zoning ordinance and any municipal planning files relating to the property from which you operate your business. Your municipality might also have an ordinance that restricts hours of operation for businesses. Do you know whether there are any planning or zoning board approvals for the building in which your dance studio is located? Do you know the zoning district in which the subject property is located? It is possible that there are land use and business operation restrictions that apply to the property you are currently using for your business. However, you also might be able to obtain relief from these regulations by requesting a variance.
I would be happy to speak with you about your circumstances in more detail either over the telephone or in person.
When we purchased a house 11 years ago, the previous owner built an addition and had a variance done (i.e. 17 ft from the property line vs 25 ft). Today we want to add an addition to be even with the 17 ft from the property line. Do we still need another variance? It's not like we are going past the 17 ft variance, just even with it. Who do we go to, to get the answers?
Thanks.
Ed:
In answer to your question, yes, you do need another variance. This is because you are expanding the nonconformity. Obviously, we would need to look at the specific ordinances governing your property, but, based upon what we know from your e-mail, that is the answer. If you would like to discuss this matter further, please do not hesitate to call me. We help people with these sorts of things all the time. Thank you.
Vince Mangini
My neighbor was granted a use variance in 1975 to operate a "one operator" beauty salon in the basement of her home. It was and is in the R-15 residential zone. The resolution stated that the variance was for only one person to operate, and it specifically named the applicant,only her and no one else. The resolution specified no employees, stated specific hours and days it could operate, and also specified that "the variance would expire with the sale or rental of the property, or attempted use by any other person other than the applicant". Can the expiration of the variance upon sale of the home be upheld? Is it legal?
Also could a variance of this type, since the use is non-conforming in this zone, be "abandoned" by non-use for more than 12 months? The local ordinance states that a non-conforming use shall be adjudged as "abandoned" when a cessation of use or activity occurs within a period of 12 months from the date of cessation.
How does the town enforce number of operators and business hours if the business is in the basement of the house with the entrance in the rear, which can't be seen from the front of the home?
Thank you.
joeg118@comcast.net
Joe:
Thanks for your inquiry. Although not intended as legal advice, the general rule is that the grant of any approvals applies to the property and not the individual. Any attempt to apply the approvals to the individual is typically unenforceable. Other restrictions, such as the prohibition of employees and hours of operation are generally enforceable.
As to the abandonment provision found in the ordinance in question, the general rule is that a fixed determination on when a property is abandoned is similarly unenforceable. The courts have determined that the mere non-use of a variance is not an abandonment, but would be part of a fact-sensitive determination of whether or not someone had the subjective intent to abandon the use. Thus, for instance, converting the space for another use would likely be a strong determining factor.
The foregoing notwithstanding, it is not unusual for a municipality to seek to enforce such resolution or ordinance, notwithstanding that a court might well not agree with their right to enforce such a requirement.
As far as enforcement, the municipality will have a designated zoning officer charged with enforcing zoning requirements. However, as you imply, violation of local zoning requirements often escapes notice by municipal officials absent a report by members of the community.
Good luck with your matter and feel free to call me at 609-896-9060 should you have any further questions.
Gary
_____