New Jersey Appellate Court Weighs in on The Procedures When Pursing a Variance or Waiver

Last month, in G&B Business Associates, Inc. v. West Windsor Township Planning Board, et al., the Appellate Division clarified the distinct paths one has when requesting regulatory relief in the context of municipal land use: bulk variances and waivers.

Background & Disposition:

Defendant developer, ER/UDC (later substituted by QuickChek) sought to consolidate the existing lots it owned in West Windsor’s B-2A zone and subdivide their consolidated property into two lots to build a convenience store, gas station, and restaurant. As part of its preliminary and final site plan approval, the developer requested twenty-one design waivers from the Township’s site plan ordinances related to parking and loading, circulation and access, signage, and lighting.

In response to the developer’s approval from the Planning Board, plaintiff G&B Business Associates, Inc., a nearby operator of a gas station and convenience store, filed a complaint in lieu of prerogative writs arguing that the West Windsor Planning Board’s decision to grant the developer’s waivers (i) exceeded its authority by granting waivers that should have been treated as variances; and (ii) was arbitrary, capricious, and unsupported by the evidentiary record.

After a bench trial, the Law Division dismissed the complaint with prejudice and the Appellate Division affirmed, upholding the approval, finding that the Planning Board acted within its authority and properly treated the relief requested as waivers, not variances.

Variances vs. Waivers Under the MLUL:

G&B argued that the issuance of waivers should be held to the same level of review as the issuance of variances. In arguing this, G&B equated site plan waivers to bulk variances. The Appellate Division disagreed, noting that the statutes have different purposes, and the language used in the bulk variance statute evidences a higher standard for relief. Bulk variances are governed by N.J.S.A. 40:55D-70(c). They provide relief from zoning ordinances when a property has “exceptional narrowness, shallowness, or shape… exceptional topographic conditions or physical features” or “by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property”. Relief is granted under such circumstances when strict application of a zoning ordinance “would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property”. Bulk variances are more significant than waivers because of their potential to undermine a municipality’s zoning scheme and therefore carry a higher legal threshold, which is what the Appellate Division pointed out in their opinion. The absence of “extraordinary” or “exceptional” conditions, on the other hand, supports waiver treatment, which is authorized under N.J.S.A. 40:55D-51(b), Waiver requests apply to subdivision/site plan design standards (as opposed to zoning regulations) and are granted so long as they are “reasonable” and “within the general purpose and intent of the provisions”. They are intended to provide flexibility where strict compliance with development standards is impracticable or would impose an undue hardship due to peculiar site conditions, as opposed to “extraordinary” or “exceptional” site conditions.

How Courts Decide Which Applies:

Courts may consider several factors when deciding whether a variance or waiver should have been requested and/or granted:

• Whether the proposed use is permitted in the zoning district. If the use is permitted, relief related to site design may be addressed by waivers rather than variances.
• The type of ordinance provision from which relief is sought. Relief from site plan or subdivision ordinances falls under waiver authority whereas relief from zoning ordinances requires a variance. This is the case unless a municipality’s site design standards are housed in their zoning ordinance rather than in a separate site plan ordinance, in which case a “c” variance would be required, not a waiver.
• Impact on the zoning scheme or character of the zone. Importantly, courts examine whether the relief substantially alters the character of the zoning district. Relief that does not alter the zoning plan supports waiver treatment.
• Nature and extent of the requested deviations. Courts consider how significant the deviations are from applicable regulations and whether they remain consistent with permitted development in the zone.
• Detailed findings by the board. Courts look to whether the board tied the grant of a waiver to factual findings supported by the record, including expert testimony and site‑specific conditions.
• Risk of usurping legislative authority. Relief resembling a rezoning or substitution of the board’s judgment for the governing body of a given municipality’s zoning plan points toward variance scrutiny whereas design flexibility within the zone does not.
• Level of deference owed to the board’s decision. If the board proceeds under the correct statutory framework and its decision is supported by the record, courts defer and treat the relief as granted

Takeaway:

G&B Business Associates, Inc. v. West Windsor Township Planning Board makes clear the waivers are not variances by another name. When a project involves a permitted use and the property owner or developer seeks relief only from site plan requirements, planning boards may grant such waivers. Courts will defer to decisions made by boards when such decisions are supported by the record and do not alter the zoning scheme of the municipality.

Here To Help:

Navigating the nuances of New Jersey’s Municipal Land Use Law, especially as it relates to determining what kind of relief to request, can be a daunting endeavor. If you are a property owner or developer and are looking to apply for land use/zoning approvals, Stark & Stark’s Zoning and Land Development group can assist you.