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Conditional Use Applicants Beware: No Standards = No Jurisdiction



October 15, 2004

A recent decision by a New Jersey appellate court gives conditional use applicants cause for concern if the applicable zoning ordinance contains no standards governing conditional uses. Not only are such ordinances deficient, but due to the lack of standards, the conditional use in question will be regarded as not permitted and will require a use variance. Thus, applicants should be particularly attentive to ordinances which lack any conditional use standards and consider carefully whether the planning board has jurisdiction.

Statutory Requirements for a Conditional Use

The Municipal Land Use Law (“MLUL”) defines a “conditional use” as “a use permitted in a particular zoning district only upon a showing that such use in a specified location will comply with the conditions and standards for the location or operation of such use as contained in the zoning ordinance, and upon the issuance of an authorization therefore by the planning board.”[1] It further provides that “[a] zoning ordinance may provide for conditional uses to be granted by the planning board according to definite specifications and standards which shall be clearly set forth with sufficient certainty and definiteness to enable the developer to know their limit and extent.”[2] Upon compliance with the applicable conditions, the use is deemed to be permitted as-of-right.[3]

Absence of Conditions Renders Ordinance Deficient

More than fifteen years ago, in Loscalzo v. Pini,[4] the courts established that a conditional use ordinance is deficient if it fails to set forth any “specifications and standards” which must be met in order to satisfy criteria as a conditional use. What the implications would be to the applicant who, confronted with such an ordinance, filed with the Planning Board, was until now an open question. The Appellate Division, in Meszaros v. Planning Board of the City of South Amboy,[5] has provided the answer: the use is not permitted and requires a use variance from the Zoning Board of Adjustment.

The Meszaros Decision

Meszaros involved an application for conditional use approval to build a two-family dwelling. The zoning ordinance conditionally permitted two family dwellings, but contained no conditions or specifications pertaining to them. The general conditional use article in the zoning ordinance, which applied to all conditional uses in the municipality, provided that the Planning Board may consider “reasonable elements which would affect the public health, welfare, safety, comfort and convenience” if the application for conditional use were approved. The Court found this provision to be “totally vague.” Although the Court did not specifically find this provision void, it clearly was void based on the case law cited in the opinion.

After a series of hearings in which the Planning Board expressed no significant reservations, it then denied the application. The trial court reversed, finding that there was no basis for the denial. The Planning Board filed a notice of appeal and the Appellate Division (despite neither party apparently having raised the issue) independently inquired into the legal sufficiency of the conditional use ordinance. Following an extensive analysis of case law pertaining to conditional uses, the Appellate Division concluded that the lack of any express conditions applicable to two-family dwellings rendered such dwellings a “phantom conditional use, a conditional use in name but not in substance.” The Court further found that the absence of any express conditions against which to measure compliance by each applicant not only rendered the conditional use provision invalid, but also created a situation where a planning board could encroach into a zoning board of adjustment’s exclusive jurisdiction over non-permitted uses. Due to the ordinance’s invalidity, the Court ruled that the Planning Board lacked jurisdiction over the application and that the applicant could file a variance application with the Zoning Board of Adjustment.

Implications of Meszaros

Zoning ordinances which either establish no conditions pertaining to conditional uses, or which establish conditions that are of questionable validity, are all too common in New Jersey. Although the case law involving conditional uses has evolved over the last decade in a variety of ways, many ordinances have not kept pace. For example, a zoning ordinance cannot require that the applicant satisfy the “negative criteria” for approval of a conditional use; thus, an applicant “need not specifically show, and the board’s resolution need not recite, that the proposed use does not substantially impair the use and enjoyment of the surrounding properties and does not impair the character of the surrounding area.” Lincoln Heights Ass’n v. Township of Cranford Planning Board.[6] Despite the current state of the law, ordinances which contain such requirements as conditional use standards are not unusual. Often, municipalities are ready and willing to approve conditional uses – albeit not subject to any specific standards – as though they were permitted uses. Meszaros demands an end to this practice.

Municipalities should review their zoning ordinances to verify whether each permitted use is subject to specific standards. If purported conditional uses exist which are not subject to specific standards, the municipality should do one of three things: (a) amend the ordinance to designate the use permitted as-of-right; (b) amend the ordinance to establish appropriate conditional use standards; or (c) amend the ordinance to delete the use entirely. Applicants who find themselves confronted with an invalid ordinance should approach the municipality in an effort to obtain an amendment which will allow the application to proceed before the Planning Board as either a permitted use or a legitimate conditional use. The alternative – a use variance from the zoning board of adjustment – is an option that most applicants will want to avoid.

[1] N.J.S.A. 40:55D-3.
[2] N.J.S.A. 40:55D-67a.
[3] N.J.S.A. 40:55D-3.
[4] 228 N.J. Super. 291 (App. Div. 1988).
[5] 2004 WL 1554391, 852 A.2d 236 (App. Div. 2004).
[6] 314 N.J. Super. 366, 386 (Law Div. 1998), aff’d on opinion below, 321 N.J. Super. 355 (App. Div. 1999).