Land Use and Zoning Due Diligence and Applications
Since entering law school in 1997, Nicole Voigt has dedicated her legal education and career to work in real estate, land use, construction, and environmental matters facing property owners, tenants, and investors.
Nicole routinely appears before land use boards and advises applicants or concerned citizens regarding land use matters. Her clients have ranged from large companies to individuals and not-for-profits. Nicole enjoys working with agricultural, commercial, industrial, and residential properties, and also has experience with Right-to-Farm and agricultural business and development. Prior to her career as an attorney, Nicole worked as an environmental scientist and was immersed in family construction businesses. Nicole understands the issues underlying real estate, development, sustainability, preservation, and construction. She uses her multidisciplinary background to provide a clearly presented, targeted application strategy.
Rights and Limitations to Building and Using Land
The Zoning Permit
Constructing or modifying a structure requires a zoning permit and a building permit. Both the proposed structure and the proposed use must be permissible. Otherwise, a zoning permit will be denied. Permissible uses and structures are determined by reviewing the municipal code for the zoning district where the property is located. Permissible uses vary between zoning districts. For example, what is permissible in a residential zone varies from what is permissible in a commercial zone. Certain uses and structures may be further protected by state law, such as agricultural activities or certain group homes.
Bulk Requirements and Subdivisions
Similarly, a zoning permit may be denied if a proposed structure or development does not comply with “bulk” requirements. Municipalities restrict the physical location and dimensions of structures. For example, setbacks from property lines, building height, minimum lot size, and fencing height must comply with restrictions or a zoning permit will be denied. If constructed anyway, violations and penalties may be assessed by the municipality, and it is possible that a structure may have to be removed. Subdivision of property to form new lots also requires land use approvals and consideration of bulk requirements.
Land Use Applications
If a zoning permit is denied, a property owner can seek relief by making an application to a municipal board. Applications are required for variances, subdivisions, conditional uses, site plans, and interpretation of code. Depending upon the type of relief required, application is made to either the municipal planning board or the zoning board of adjustment. Not all applications are approved. If an application is approved, conditions are usually imposed by the reviewing board. Given the costs, range of possible outcomes, and potential restrictions, it is wise to consult with an attorney prior to investing in a land use application.
Never assume a use or structure will be allowed.
Applications require strict notice requirements, are technical, and typically require expert testimony. Neighboring property owners can submit evidence in support of or against an application. Applications are reviewed by township professionals at the applicant’s expense. A public hearing is held where the applicant and its expert(s) submit testimony and address questions by the board and its professionals. Multiple hearings might be required. The process takes months, sometimes longer.
Properties are sometimes used in a manner that violates current zoning. This may be because the structure or use is “grandfathered,” meaning its nonconformity predates zoning restrictions. In other cases, the building was constructed or modified without obtaining all required approvals. Potential purchasers or tenants of such a property may inherit a legal issue or find themselves subject to violations and unworkable restrictions. Property owners may be ordered to correct violations, discontinue uses, tear down a structure, and/or pay penalties if an appropriate approval is not timely obtained.
Misunderstanding Municipal Records
Property owners are sometimes misguided by tax records, building permits, and verbal history, causing them to wrongly believe a structure may be used in a particular manner. While this evidence is relevant to some considerations in a land use application, it is not a substitute for zoning approval. Paying real estate taxes based upon a certain use, or having an old building permit with a reference to a particular structure or use, are not a substitute for zoning approval. It remains the property owner’s obligation to obtain each required permit or approval, or face potential enforcement.
The Role of an Attorney
An experienced New Jersey land use and real estate attorney strategically navigate the existing versus required permits and approvals for any structure or use based upon law and property constraints. Other approvals and/or licenses may also be required. Required contracts should be carefully drafted with an understanding of both your target property and your objectives. Your attorney should have a network of trusted real estate professionals and experience with expert witnesses, application strategies, drafting public notices, presenting and defending an application at hearing, and reviewing resolutions.
Help is Available
Nicole routinely appears before land use boards and advises applicants or concerned citizens regarding land use matters. Her clients have ranged from large companies to individuals and not-for-profits. Nicole enjoys working with agricultural, commercial, industrial, and residential properties, and also has experience with Right-to-Farm and agricultural business and development.