Obtaining “C” Variance Relief For Real Property

The New Jersey Municipal Land Use Law (MLUL) at N.J.S.A. § 40:55D-70 sets forth the statutory requirements for “C” variance (bulk) relief.  Variance relief is necessary when a property owner will suffer a hardship relating to the physical or topographic feature of his/her property.   An illustration when a “C” variance is needed is when an applicant cannot satisfy an off-street parking requirement by constructing a driveway on the front yard setback of their property because the City’s zoning ordinance prohibits parking in a front yard for residential uses.

An applicant must satisfy five (5) statutory criteria under the MLUL to obtain C(2) variance relief:

1. The requested variance must relate to a single specific piece of property;
2. The purposes of the MLUL must be advanced by the proposed deviation;
3. The benefits of the proposed variance will substantially outweigh any detriments;
4. The variance can be granted without substantial detriment to the public good; and
5. The grant of the variance will not substantially impair the intent and purpose of the City’s zoning plan and zoning ordinance.

The MLUL lists fifteen (15) separate purposes that relate generally to the public health, safety, establishment of appropriate population desirable visual environments.  Specifically, the stated purposes are of the MLUL are:

1. To encourage municipal action to guide the appropriate use or development of all lands in this State, in a manner which will promote the public health, safety, morals, and general welfare;
2. To secure safety from fire, flood, panic and other natural and man-made disasters;
3. To provide adequate light, air and open space;
4. To ensure that the development of individual municipalities does not conflict with the development and general welfare of neighboring municipalities, the county and the State as a whole;
5. To promote the establishment of appropriate population densities and concentrations that will contribute to the well-being of persons, neighborhoods, communities and regions and preservation of the environment;
6. To encourage the appropriate and efficient expenditure of public funds by the coordination of public development with land use policies;
7. To provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space, both public and private, according to their respective environmental requirements in order to meet the needs of all New Jersey citizens;
8. To encourage the location and design of transportation routes which will promote the free flow of traffic while discouraging location of such facilities and routes which result in congestion or blight;
9. To promote a desirable visual environment through creative development techniques and good civic design and arrangement;
10. To promote the conservation of historic sites and districts, open space, energy resources and valuable natural resources in the State and to prevent urban sprawl and degradation of the environment through improper use of land;
11. To encourage planned unit developments which incorporate the best features of design and relate the type, design and layout of residential, commercial, industrial and recreational development to the particular site;
12. To encourage senior citizen community housing construction;
13. To encourage coordination of the various public and private procedures and activities shaping land development with a view of lessening the cost of such development and to the more efficient use of land;
14. To promote utilization of renewable energy resources; and
15. To promote the maximum practicable recovery and recycling of recyclable materials from municipal solid waste through the use of planning practices designed to incorporate the State Recycling Plan goals and to complement municipal recycling programs.

See N.J.S.A. § 40:55D-2a-o.

To satisfy the requirements of a C(2) variance, an applicant must prove by clear and persuasive evidence the need for the variance falls within one of the specific purposes enumerated in the MLUL.  Variance applications also require a majority vote by the local Zoning Board of Adjustment.  Since Planning and Zoning Boards require a showing of specific evidence pertaining to the property for variance relief, an applicant should, at a minimum, retain a planning expert to testify in support of the application at the hearing.

Due to the complex nature of variance application, an applicant should retain an experienced New Jersey zoning and land use attorney to ensure that their application is positioned for success.