Planning, Zoning, and Variances
New Jersey has given local government the authority, for more than 85 years, to regulate and restrict location of ýtrades and industries,ţ as well as development for specified industrial uses. More sweeping authority was granted in the State Constitution of 1927, which led to the first zoning enabling and planning acts of 1928 and 1930. The authority to regulate land use is now found in the Constitution of 1947, which authorized the delegation of some of the state's power to municipalities. Delegation was effectuated by virtue of several land use laws, the most recent being the Municipal Land Use Law of 1975.
Municipalities are not required to exercise their authority to plan and zone, but all municipalities in Hunterdon County, and surrounding counties, do so. Municipalities that use the granted power must do so in strict conformity with the provisions of the Municipal Land Use Law.
The delegated authority is exercised by three municipal agencies ˇ the planning board, governing body, and zoning board of adjustment. The planning board adopts a master plan with a land use element. The governing body, with reference to that plan, adopts a zoning ordinance.
Once the zoning law is in place, the planning board and zoning board of adjustment review individual applications to determine whether development proposals conform to the ordinance, or whether an exception should or must be made. The Boards are established to do equity in accordance with the powers given them by statute and ordinance, in cases where the strict application of the law would be a hardship or would not be just.
These boards are independent statutory agencies. They are not courts, but perform in similar fashion, in the process of hearing and deciding applications which come before them. They must take testimony, review exhibits, and make findings of fact and reach conclusions of law.
If a property owner, or any person with an interest in the outcome of the application, is not satisfied with the conclusion of the hearing agency, an appeal can be taken. The reviewing body cannot substitute its judgment for that of the board. It determines if the board was arbitrary or unreasonable, or acted properly under the statute.
Our experience in dealing with these matters is extensive. Our lawyers have obtained approval for airports, communication towers, service stations, shopping centers, fast food businesses, and large and small housing developments. We have obtained approvals for swimming pools and buildings located in error closer to building set back lines than allowed under ordinance.