Zoning Code Labyrinth

by on June 6, 2018

Have you dreamed of increasing or simply changing the footprint of your home? Perhaps you’d like to add that fourth bedroom, or remove some walls to connect your kitchen and family room. Maybe it’s adding the pool you’ve always wanted since you were an 8-year old. Assuming that you have the financial means to pursue your project, before you can knock down a wall or start digging a hole, you will have to navigate through the labyrinth of local zoning regulations.

Land use restrictions have been around since before the United States existed. However, the first comprehensive zoning ordinance was enacted by New York City in 1916. Under the new rules, the City was divided into districts and private landowners were allowed only to use their land for the purposes permitted in their applicable district. Following the example of New York City, by the 1920’s, zoning ordinances were being enacted by local governments across the United States. Zoning ordinances can turn what appears to be a simple project into a complex undertaking. However, with advance planning and by aligning yourself with the right local professionals, the otherwise frustrating process can become much more manageable.

Christa Anderson, zoning officer for Summit Township, recently sat with Summit-based Avelino & Hartlaub, LLP managing partner A. Jude Avelino to discuss the zoning process. Their conversation offered insights for homeowners who may be considering construction.  For starters, the process formally starts when a homeowner files an application with their local municipality for a construction permit. Upon receiving the application, which should include with it a current certified copy of the property survey, the town’s zoning board will review the building plan and determine if a variance is needed or not. Anderson recommends that before filing a permit application, the homeowner should consult with a local architect and engineer and, if possible, a town zoning officer. These individuals should be able to give the homeowner a better idea of what the zoning board is likely to approve or disapprove.

A variance is a request to deviate from a municipality’s existing zoning requirements. If one is granted, it allows a homeowner to use their property in a way that is ordinarily not permitted by the zoning ordinance. If a variance is required for the homeowner to move forward with their project, although an attorney is not required, Anderson recommends consulting with one. In essence, according to Anderson, the attorney will become the de factor “orchestra leader” and guide the homeowner through the complexity of the local and state regulations. In addition, the attorney will be able to testify on the homeowner’s behalf.  Avelino added, “You can spend upwards of six figures renovating your home. Don’t try and save a nominal amount of money and forgo hiring an attorney, you may have to pay for it in the long run.”

Anderson outlines the process that an applicant can expect at a Summit zoning board hearing.

1)    Personal testimony from the applicant

2)    Professional testimony from the structural architect, landscape architect and/or engineer

3)    Questions by the board

4)    Questions from anyone in the public (neighbors)

5)    Deliberation

Following a hearing before the zoning board, which usually lasts about 30 minutes, the board will deliberate and render its decision, which is made through a resolution. The resolution is essentially the record of the proceeding and contains all relevant information, such as voting members, property description, the development proposal, variances requested, summary of the testimony etc. Most importantly, it contains the final decision of the board, either approving the variance is or not. Often, an approval will include conditions and Anderson suggests that homeowners read the resolution carefully for this reason. If the variance is rejected, the homeowner can file an appeal with the Superior Court of New Jersey. At this point, an attorney is highly recommended and according to Avelino, to win the appeal, the homeowner will need to prove that the resolution was either “arbitrary, capricious or unreasonable”.

For Christa Anderson’s full interview with A. Jude Avelino on HomeTowne TV, go to https://youtu.be/uNYO4xQ1U1Q

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