New Jersey Land Use Law: Is Your Proposed Use Permitted?

Are you planning on starting or relocating a business? As part of your planning process you need to do a careful analysis of the local zoning ordinances governing your proposed location. The threshold question is whether the proposed use is permitted in the zone in which the property is located. There is often no simple answer to that question, and the answer will affect not only where the owner needs to file for the necessary approvals, but will greatly impact the time required to obtain approvals and the chances of success. Municipal ordinances vary widely in their definitions of permitted and excluded uses, and often do not contain clear definitions as to the permitted uses. Many times ordinances include blanket statements providing that uses not expressly permitted are deemed to be excluded. In addition, uses which did not exist when the ordinance was drafted can be a gray area.

There are several steps which should be taken at the outset to ensure the best opportunity to obtain the required approvals in an efficient and cost-effective way. The owner, his architect, engineer and attorney, should jointly do the following:

1. Review the applicable ordinance and all definitions.

2. Review existing uses in the zone where the business is proposed to be located. If similar uses to the proposed use currently exist in the zone, then municipal records should be checked to see how and when they were approved, including whether they were deemed to be permitted uses.

3. Once the information in Sections 1 and 2 above has been gathered, a meeting should be arranged with the municipal Zoning Officer for review and input. At this juncture, if the Zoning Officer is convinced that the use is permitted, the approval process will likely be an application to the municipal Planning Board. The Planning Board will have jurisdiction to grant both site plan approval and any so called “(c)” (non-use related) variances, if required. If no site plan approval or variances are required under the local ordinances, the Owner will be able to proceed directly to obtaining any required construction permits.

4. If the Zoning Officer determines that the use is not permitted, the owner may apply to the Zoning Board for an interpretation of the ordinance which would overturn the Zoning Officer’s determination. That application can be filed jointly with an alternative application for approval of the required use variance if the Zoning Board declines to grant an interpretation that the use is permitted. Use variances are, however, difficult to obtain and require a heavy burden of proof. A careful analysis as to whether seeking such a variance is cost-effective must be done before proceeding. If a use variance is required the Zoning Board will also have jurisdiction to grant site plan approval and any “(c)” variances. If the Zoning Board interprets the ordinance to permit the proposed use, the Owner will then be required to apply to the Planning Board for any required site plan approval and “(c)” variances. If no site plan approval is required under the local ordinances, the Zoning Board can grant any required “(c)” variances in connection with the application for interpretation.

Recent Zoning Matters Handled by Lindabury

Two of our recent matters illustrate different approaches to this process. In one instance we represented a startup microbrewery seeking to locate in a suburban New Jersey town. The use is relatively new, having only been authorized by the New Jersey Statutes since 2014, and was not contemplated at the time the ordinance was adopted. The proposal included an onsite brewery with yearly gallonage limitations, a tasting room licensed to serve beer brewed on-site in conjunction with a brewery tour, and sales of beer for off-site consumption. The zone where the use was proposed to be located was defined as light industrial. However, there was no definition of light industry in the ordinance and, given that the use was relatively new, there were no similar uses in the zone. Faced with this novel issue the Zoning Officer was reluctant to render an opinion as to whether the proposed use was permitted, and referred us to the Zoning Board. An application was filed solely for interpretation of the ordinance, as there was no requirement for site plan approval under the local ordinance because the proposed location was in a multi-use building with sufficient parking, and no “(c)” variances were required. We decided not to apply in the alternative for a use variance because we believed that our arguments that the use was permitted were persuasive. The Zoning Board agreed that the use constituted light industry, as the predominant use was the production of beer. Even though the onsite tasting and sales activities were included, those related uses were deemed typical accessory uses to the brewing operation.

A second matter involved a fraternal organization which planned to add an outdoor rooftop lounge to its existing building located in a suburban central retail business district. The ordinance was silent as to such facilities, which are increasingly common in more urban areas, and no similar facilities existed in the municipality or surrounding towns. However, the headquarters of fraternal organizations were specifically permitted. In this instance the Zoning Officer agreed with our position that the rooftop lounge was simply an extension of the existing fraternal hall, which included an indoor bar and lounge, and therefore a permitted use under the ordinance. We were able to proceed with an application to the Planning Board for a minor “(c)” variance and site plan approval, which were unanimously granted.

The keys to success in these matters are always to be thorough in your due diligence and research, to reach out early to the Zoning Office or other appropriate municipal officials, and to engage professionals experienced in land use law who can properly chart the course for your application. In this way a business owner can ensure a time sensitive and cost-effective approach to navigating the approval process.

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