Often, clients purchase property with intentions of building a house on a vacant lot, or converting a two family house into a three family house. In New Jersey, that process is heavily regulated and controlled by municipal government. If a property or structure does not meet the local zoning requirements, then the landowner must file an application for a variance from those requirements.
For example, an owner wishes to build a home on a lot that is 50 feet wide, but the minimum width required by the zoning ordinance is 60 feet. The owner will need to apply to the municipal planning board for a bulk variance. Typically that will require retention of an attorney and an engineer or surveyor, and preparation of plans to submit to the board. Further, the applicant must establish an escrow account with the municipality in which his or her funds are used to pay the town’s professionals, such as the board attorney and municipal engineer, for their time in reviewing the application. Ultimately the application is scheduled for a hearing before the board, in which the applicant, his attorney and his engineer present the case for the variance and may be questioned by the board and the board attorney. The town’s professionals will also present their evaluation of the proposal. At the end of the hearing, the board members will discuss the application and take a vote to approve or deny the application. Approval by a simple majority is required for a bulk variance, so that four votes out of a seven member board are needed. After approval, the board will adopt a resolution which the applicant will need to publish in the local newspaper to start the 45 day appeal process for any person who is aggrieved by the approval. Overall, the variance process involves a lengthy time frame. A contract seller may balk at a variance contingency of six months or more in the contract of sale. But the buyer may not want to close title to the property unless it is assured of having all required municipal approvals including necessary variances.
Applications for use variances are heard by the municipal zoning board of adjustment. This would be for changing the use of a two family house to a three family house, or to change the zoning of a building lot from commercial to residential, for example. Approval of a use variance application requires five out of seven board votes. Like with bulk variances, an application and plans need to be submitted to the municipality, and the case is heard before the zoning board. Typically with a use variance, the testimony of a professional planner is also required to prove the case, particularly the statutory requirement that the applicant can show special reasons for the requested variance.
Chuck Whelan is an experienced land use attorney who has appeared before dozens of municipal boards over his career. Call him today for a free initial consultation.
