New Jersey is a "home rule" state, meaning each of its 564 municipalities has its own zoning ordinance. These ordinances are often outdated, restrictive, or simply not designed for modern development. As a result, almost every significant development project requires some form of relief from the zoning code.
This relief comes in the form of a variance. But getting one isn't as simple as showing a pretty rendering. You must present expert testimony to the Zoning Board of Adjustment proving that your project meets specific criteria outlined in the Municipal Land Use Law (MLUL).
The Two Types of Variances
Variances are generally divided into two categories: "C" variances (bulk) and "D" variances (use). Each requires a different legal argument and a different vote count.
The "C" Variance (Bulk Relief)
A "C" variance is for relief from physical dimensional standards. Think setbacks, lot coverage, building height (within 10% of the limit), or parking stall size. There are two distinct ways to prove a "C" variance:
C(1) Hardship Variance
This argument is based on the physical characteristics of the land itself. You must prove that strict application of the zoning ordinance would result in "peculiar and exceptional practical difficulties" or "exceptional and undue hardship."
- Narrowness, Shallowness, or Shape: "My lot is triangular, so I can't meet the side yard setback."
- Topographic Conditions: "There is a steep cliff in the middle of the buildable area."
- Physical Features: "A stream runs through the property."
Note: The hardship must be related to the land, not the owner. You cannot claim hardship because you paid too much for the property or because you have a large family.
C(2) Flexible "C" Variance
This is the more common argument for modern development. You don't need to prove hardship. Instead, you must prove that:
- The purposes of the MLUL would be advanced by the deviation (e.g., better planning, visual environment, public health).
- The benefits of the deviation substantially outweigh any detriments.
Example: "By moving the building closer to the street (violating the setback), we can preserve a historic oak tree in the rear yard."
The "D" Variance (Use Relief)
This is the heavy hitter. A "D" variance allows a use that is fundamentally prohibited in the zone. There are actually six types of "D" variances:
- D(1): Use variance (e.g., apartments in a commercial zone).
- D(2): Expansion of a non-conforming use.
- D(3): Conditional use variance.
- D(4): Floor Area Ratio (FAR) variance.
- D(5): Density variance.
- D(6): Height variance (exceeding limit by 10% or 10 feet).
The Burden of Proof for a "D" Variance
To win a "D" variance, you must prove both the Positive Criteria and the Negative Criteria.
1. Positive Criteria ("Special Reasons")
You must demonstrate that the use promotes the general welfare because the site is particularly
suited for the proposed use. This is known as the Medici Standard. You
have to explain why this specific property is better for your project than a property where
it is actually permitted.
2. Negative Criteria
You must prove that the variance can be granted without:
- Substantial detriment to the public good (it won't hurt the neighbors).
- Substantial impairment of the intent and purpose of the zone plan (it won't break the town's zoning).
The Vote Count Matters
The threshold for approval depends on the type of variance:
- "C" Variance: Requires a simple majority of the quorum (e.g., if 7 members are present, you need 4 "yes" votes).
- "D" Variance: Requires a super-majority of the full board (5 out of 7 votes), regardless of how many members are present. If only 5 members show up, you need a unanimous vote. This makes "D" variances incredibly risky.
The Professional Team
You cannot do this alone. A successful variance application requires a team of experts to provide testimony:
- Land Use Attorney: Navigates the legal procedure and questions the witnesses.
- Civil Engineer: Testifies on site design, grading, stormwater, and utilities.
- Architect: Testifies on building design, floor plans, and aesthetics.
- Professional Planner (PP): The most critical witness. They provide the "planning proofs" linking your project to the MLUL and justifying the variance.
- Traffic Engineer: Often required to prove the project won't cause gridlock.
Conclusion
Winning a variance is not about convincing the board that your project is "nice." It is a quasi-judicial process that requires specific legal and planning evidence. If you fail to provide the proofs, the board must deny the application, even if they like it.