The power to zone land is a prerogative of the State. In New Jersey, this power is delegated to cities and towns by means of the Municipal Land Use Law. At the town or city level, three groups of elected and appointed office-holders act at various times.
Many people think, reasonably enough, that "zoning" originates with the "zoning board." But this is not the case. All zoning ordinances must be introduced and adopted by the municipality's elected governing body. Citizens' concerns are often the impetus behind zoning ordinances, and anyone may propose revisions and amendments to these ordinances.
Once the proposed ordinance has been drafted, it is introduced by the governing body at a public hearing. Then it is the turn of the second of the three groups: the Planning Board.
One of the Planning Board's duties is to supervise the drafting of the Master Plan for the city or town. (The Municipal Land Use Law requires that each municipality revisit its Master Plan every six years.) The Planning Board also reviews proposed ordinances to make sure they comply with the Master Plan.
After the Planning Board has provided its comments, the governing body may then adopt the ordinance, or send it back for appropriate revisions to be introduced. It is permissible to adopt a zoning ordinance against the recommendation of the Planning Board, but special procedures must be followed. Note, also, that while we often speak of THE zoning ordinance of a town, meaning the entire body of that town's laws relating to land use, each individual section may be adopted, amended, or repealed on its own.
The Planning Board has yet another function. Following procedures set forth in the Municipal Land Use Law and in the town's land use ordinance, the Planning Board reviews every proposed subdivision, development or building project (site plan) to make sure that the ordinance will be complied with. Planning Boards also have the power to grant certain types of variances, called "bulk variances," those having to do with the shape and size of buildings and plots of land.
The last group to weigh in on zoning issues in New Jersey is the Zoning Board of Adjustment. The Zoning Board has sole authority to review development and building applications which require so-called "use" variances. In addition to the "bulk" size and shape requirements, each parcel of land is assigned a particular use or set of uses which are permitted under the Master Plan and zoning ordinance. Any different use needs a variance.
It might be unfair to apply the zoning ordinance, strictly as written, to a particular, unusual, site, even though in general the ordinance is fair. The injustice could deprive the landowner of his or her rights under the US and State Constitutions. To avoid that, the Municipal Land Use Law provides a mechanism (variances) to adjust the regulations, consistent with fairness or good planning principles. For a situation which differs from the general run of the mill, the landowner may be able to prove entitlement to a variance. Hence, the board's full name: Zoning Board of Adjustment. *
*In olden days, only the Zoning Board could grant variances, including "bulk" variances. The Planning Board was limited to reviewing and approving site plans and subdivisions which complied with the ordinance. The law was changed so that land use applications with "bulk" variances could be heard in one place without having to bounce back and forth between the two Boards. Nowadays, the Zoning Board can also grant site plan or subdivision approval if the application requires a variance of the kind the Planning Board lacks authority to grant (i.e., "use"and related variances as set forth in the Municipal Land Use Law.)
Whether you are applying for permission to build or subdivide, or proposing a change to the zoning ordinance, or opposing a proposed regulation or project, you need to understand how the Boards work. if possible, attend some of the meetings so that you will be better prepared to help your lawyer with your case. Zoning officials, the town's professional urban planner and engineer, and the municipal Clerk are always good sources of information on the specific applicable rules, regulations, ordinances, statutes, and histories of the properties in town. Remember that other levels of government, including utility authoriti es, County planning boards, State administrative agencies, and even the US government, will often have concurrent jurisdiction.
This guide is not intended to provide legal advice, nor does it create an attorney-client relationship.