Planning Boards and Zoning Boards are different and each Board has a different purpose and function.
New Jersey’s Municipal Land Use Law (MLUL) has clarified the powers exercised by each Board.
As one land use commentator stated, “A Planning Board can and should be characterized as the Board of ‘permitted activities.'” The Planning Board’s essential duties are to deal with the municipality’s master plan and the implementation of that plan through zoning, site plan and subdivision ordinances. These ordinances set forth requirements that must be met by an applicant to secure approval of a land use application. If the applicant meets the requirements of the ordinance, the Planning Board must, in virtually all instances, approve the proposed application. There is no basis whatsoever for denying a site plan or subdivision application unless a specific requirement of that ordinance is not met by an applicant (i.e., a variance request or a request to allow a waiver from a site plan requirement.)
The Zoning Board, on the other hand, is the Board of “non-permitted uses” and requests for relief from the written standards of the municipality’s land use ordinance. Zoning Boards deal primarily with the issuance of variances. Variances are based upon the individual municipality’s zoning ordinance. The zoning ordinance establishes specific requirements for a property within a municipality and regulates not only the uses permitted, but the size of the parcels, setbacks, required parking spaces, signs, conditional uses and numerous other regulations.
An applicant is never entitled, as a matter of right, to a variance. Rather, an applicant must address and satisfy specific criteria contained in the MLUL and case law by satisfying certain legal standards of proof. The burden is upon the applicant to show that he or she is entitled to the specific variance relief being requested. Merely making an application to a Board and paying the required fees is not sufficient. Depending upon the type of variance requested, the applicant will need to offer proofs to obtain an approval such as special reasons, a balancing of the pros and cons of the proposal, hardship, negative criteria, etc.
Every Zoning Board and Planning Board in New Jersey is required to schedule at least one public meeting per month. The New Jersey Open Public Meetings Act requires that a schedule of regular meetings be adopted and notice be provided to the public. The Act requires that the meeting schedule be filed with the municipal clerk, posted on the municipal bulletin board, and sent to two newspapers, one of which is the official newspaper of the municipality. If these notice requirements are not followed, grounds exist for the dismissal of any hearing held and the voiding of any action taken by the Board during such a meeting. Special meetings of the board necessitated by some important reason also require notice to the public within a 48-hour period prior to being held. All Zoning Board and Planning Board hearings must be open to the general public, with limited exceptions. Minutes of all meetings and action taken must be made public as well.
When applying for a variance in front of a Planning Board or Zoning Board, an applicant presents his or her case together with witnesses testifying to the specific variance relief they are requesting. Objectors to a variance application are allowed at the meeting and have the legal right to voice their objections as witnesses as well. If the objectors wish to hire an attorney and call separate rebuttal witnesses, they are legally entitled to do so. The Board, the opposing party, and the public all have the right to confront each witness called by a party. In addition, the public record at the end of each hearing remains open for public comments and questions pertaining to each variance application.
Fredrick P. Niemann Esq.
Applying for a variance in front of a Planning Board or Zoning Board of Adjustment can be an intimidating process, especially if your application is met with objectors. Often times, an applicant may be unprepared to meet the strict requirements a Board requires when granting a variance. The attorneys at Hanlon Niemann & Wright have presented countless applications for variances before Planning Boards and Zoning Boards. They know what to show the Board, what witnesses to call, and what questions to ask witnesses you or your opposition may call. We have also represented many objectors to zoning applications as well.
He can be reached at our toll free number (855) 376-5291 or by email at fniemann@hnlawfirm.com
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Zoning Law Attorney
