Updated: Oct 17, 2018
Land use law is the broad category of all laws pertaining to our use of land. It is not synonymous with zoning law, because zoning is only one aspect of land use. Land use law is the umbrella that covers everything.
The question of whether we can build a 1.) certain sized restaurant on 2.) land of a certain configuration involves zoning. However, the question of how one must construct the parking lot and storm-water basin is a design standard. Both involve how we can and shall use land.
The laws that govern how we can use our land are mostly encountered at the municipal level, though these rules are enabled and guided by state law. In certain areas of New Jersey, there are double sets of regulations – a layer upon a layer.
In the Pinelands Commission and Highlands (northwestern New Jersey) Regional Areas, for example, there exists a second law book for how land can be used – although most municipal ordinances (laws) mirror and incorporate special regional regulations. To put it simply, the local law book will include most of the contents of the regional law book.
Under New Jersey law, land use authority is delegated to three independent bodies at the local level: the governing body, the planning board and the zoning board. The planning board adopts a master land use plan and the governing body uses this plan to draft and enact land use laws or ordinances. The zoning and planning boards interpret and apply these ordinances when considering applications.
The zoning ordinance, one of the main components of local land use law, contains “bulk” regulations. These “bulk” regulations proscribe requirements for lot size, lot width, lot depth and how far structures need to be from the front, side and rear yard lines. The zoning ordinance also outlines what type of uses are permitted in various zoning districts throughout a municipality.
For example, within a hypothetical Planned Residential One (PR1) District, a house would need: a.) a lot of at least one acre, with 75 feet of road frontage; b.) to be at least 40 feet from the front property line, 25 feet from the rear property line and 15 feet from the side property line; and c.) a lot that is 100 feet wide. Everything that is italics above would be considered a “bulk” requirement within the PR1 zoning district.
The zoning ordinance for this hypothetical PR1 zone would also specify the types of permissible uses. By way of illustration, a PR1 zone may permit a single-family dwelling, a twin house, a single-family house with a home office, agriculture and a daycare center. Checking the zoning district and permitted uses is always a first step to investigating a property.
The zoning official or officer is usually the first person encountered in a municipality when seeking to use land. The position is created by New Jersey Statute and appointed by the local governing body. The zoning official is the gatekeeper to how land can be used. Nothing will occur legally on a piece of land unless and until the zoning official gives a “green light” or his or her decision is appealed.
The zoning permit is the document that ensures that new construction or an alteration of an existing structure is in conformance with the provisions of the zoning ordinance adopted by the governing body. The zoning officer basically operates off a checklist of bulk and use requirements when considering a development application.
If your proposal – either by desire or necessity – deviates from either a bulk or use requirement of the law, you may seek a “variance”. A variance application asks permission of the zoning board of adjustment (ZBA) to vary or differ from the enumerated rules. You are not permitted to go directly to the ZBA, even if you know a variance is required. The ZBA does not have jurisdiction to consider a variance unless the zoning officer denies your permit.
Suppose you wanted to build a house in the above hypothetical PR1 zoning district on a lot that was 90 feet wide. Assuming no other complicating factors, the development application would just require one bulk variance. The use is fine, because you are building a house in a residential zone.
However, let’s further suppose that you located a terrific spot for a house, but found – after examining the zoning map – that the municipality zoned the location as Highway Commercial (HC). Do not be surprised. This problem happens all the time. Sometimes local governments have pie-in-the-sky ideas about where businesses might thrive.
In this case, the zoning officer would deny your permit for a house. This would set up a scenario for an appeal before the ZBA. Your application would be for a use variance, not a bulk variance. Having a denied zoning permit gives you the right to go to the board.
Use variances are harder to get. These variance types require more than a simple majority voting in favor of your appeal. They require 2/3rds majority of the membership – not 2/3rds of the members present for the meeting. Use variances also require the testimony on your behalf of a professional planner, which is an added expense.