Land Use Overview
Municipalities throughout the State of New Jersey exercise their authority to plan and to zone pursuant to a law known as the Municipal Land Use Law (N.J.S. 40:55D-1 et seq.). The authority delegated to municipalities is exercised by 3 municipal agencies: the planning board; the governing body (sometimes known as the town council or the town committee); and the zoning board of adjustment (commonly referred to as the zoning board or the board of adjustment). The planning board adopts a Master Plan pertaining to the use of land within the municipality. The Master Plan sets forth where different housing and commercial buildings and businesses may be constructed or improved. The municipality works from that plan to enact zoning ordinances to implement the goals and provisions of the Master Plan. To ensure that all building and improvements conform to the Master Plan and the ordinances adopted to implement that plan, anyone who wants or needs to build or improve any structure in the municipality must first make an application to the municipality. Depending on what is planned, a code enforcement or zoning official may inspect and approve or deny the request. Other times, an application must be made to either the planning board or the zoning board. The planning board or the zoning board reviews individual applications to determine whether the application conforms to the master plan and the ordinances. If the application does not conform, the board must determine whether an exception should or must be made. An exception is known as a variance.

Planning and zoning boards are the "keepers of the conscience" of the community in zoning and planning matters. The boards, which are comprised of residents of the community who have been appointed by the mayor, must act in a fair and impartial manner, consistent with their authority and the law in considering the circumstances of the request to build, add, convert or change property in the municipality.

While the zoning and planning boards are not courts, when they hear and decide matters, they must take testimony, review exhibits, make findings of fact and draw legal conclusions from the facts presented at the hearing in the same manner that a court would.
We are well versed in all aspects of land use law, whether it involves an application for a shed, a deck, the installation of a home office, or a large development. We understand the intricacies of the law, the necessity to present the most thorough and convincing case before the appropriate municipal agency, and the best way to handle any appeal of a decision by a municipal agency in the courts.

One of the first matters to be decided by the applicant and the attorney is which board will have the authority to hear a particular application. Whether a planning board or a zoning board has jurisdiction over the application depends upon the nature of the application.

Matters That Come Before Planning Boards
Planning Boards hear matters which involve the following: (1) municipal adoption of a Master Plan; (2) subdivision control and site plan review for permitted uses; (3) recommendations as to the official map; (4) conditional use applications; (5) recommendations as to the zoning ordinance or amendments thereto; and (6) the capital improvement programs.

Matters That Come Before Zoning Boards
The primary purpose of the zoning board of adjustments is to hear applications where variances are necessary. In other words, to make "adjustments"or approve deviations from the Master Plan or the zoning ordinances where justice demands. The planning board can grant certain variances in limited circumstances but most requests for variances must go before the zoning board of adjustments. The zoning board is also empowered to hear appeals from the decisions of municipal officials regarding land use matters.

Zoning boards hear applications requesting "c" variances, commonly known as "bulk" variances. They are variances set forth in New Jersey Statute 40:55D-70c. Zoning boards also hear applications requesting "d" variances, commonly known as "use" variances. These circumstances are governed by New Jersey Statute 40:55D-70d. The applicants have different burdens of proof depending on whether the application involves "c" variances or "d" variances. Understanding the burdens of proof and taking all the steps necessary to meet those burdens are critical to a successful application.

This information should not be considered legal advice and is not intended as a substitute for consultation with an attorney