Frequently Asked Questions

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Do I really need an attorney?

If you are seeking a land use approval as a corporation or other business entity, you are required by law to be represented by an attorney at any hearing before a municipal land use board. Even if you are applying as an individual and are not required to be represented by an attorney, we strongly recommend that you seek competent representation. The land use process can be a complex one for someone who is not familiar with the law, and the hearings held by land use boards are quasi-judicial proceedings. In order to protect their interests at the hearings, Applicants should have a knowledgeable attorney to effectively present the testimony of all witnesses, answer the questions raised by Board members and respond to any objections that may arise.

Who can apply for a land use approval?

Generally speaking, property owners, contract purchasers and tenants may apply for land use approvals. Note, however, that an Applicant other than the owner of the property must obtain the written consent of the property owner.

How do I know whether to apply to the Planning Board or the Zoning Board of Adjustment?

In general, only the Zoning Board of Adjustment can grant what is called a “D” variance, so any application involving a “D” variance must go to the Zoning Board of Adjustment. “D” variances concern non-conforming uses, deviations from conditional use requirements, floor area ratio, density and building height (where the proposed height exceeds the permitted height by 10 feet or 10%). In addition, the Zoning Board of Adjustment hears applications requesting so-called “C” variances only, without seeking any other approval. “C” variances concern deviations from “bulk” zoning requirements like lot dimensions and overall lot area, front, side and rear yards and lot coverage.

The Planning Board, on the other hand, hears applications for site plan and subdivision approval when either “C” variances are required or no variances at all are required.

This can be a very confusing distinction for an inexperienced Applicant. Based on many years of representing both Planning Boards and Zoning Boards of Adjustment, as well as Applicants seeking approvals from both types of Boards, we can easily determine which Board has jurisdiction and advise our clients appropriately.

Are there any time limits or deadlines that I need to be aware of?

Yes. The Municipal Land Use Law imposes jurisdictional time limits on Applicants in serving and publishing the required notices of hearings. This is crucial because if an Applicant fails to serve and publish its notices on time, the Board cannot hear the application. In addition, many municipalities impose deadlines for submissions. For example, plans may need to be submitted at least 10 days before the next scheduled hearing in order for the Board to consider it.

On the other hand, the Board is also required by law to act within certain time limits. If it fails to do so, an Applicant may be entitled to approval by default.

Monitoring these time limits is just one part of the services offered by our firm. Throughout the process, we insure that all submissions are made and notices transmitted on time, and at the same time monitor the Boards’ compliance with the time frames imposed upon them by law.

How can I find the right professionals for my project?

We have long-standing relationships with many other local professionals, including engineers, architects, professional planners and traffic experts. We are happy to advise our clients as to which types of professionals they need and to refer clients to the professionals we believe are best suited for their particular projects. We continue to work together with those professionals throughout the process by advising as to plan revisions that may be required, coordinating all required submissions, and preparing the professionals to testify as experts at public hearings before the Boards.

Is there a way to appeal the decision of a Planning or Zoning Board?

Yes. The decisions of municipal land use boards may be appealed to the municipality’s governing body (typically the Mayor and Council) or directly to the Superior Court in what is called an Action in Lieu of Prerogative Writ. We have a great deal of experience in both types of appeals, and can help clients determine the best alternative based on the circumstances of the particular decision.

What is the role of the public in the land use application process?

With very few exceptions, Applicants are required by law to notify the public of the hearings to be held on their applications. This is done by (1) serving by certified mail or personal service a notice of hearing to all owners of property within 200 feet of the project; and (2) publishing a notice of hearing in the official newspaper designated by the municipality. Any member of the public, regardless of whether they received notice of the application, may appear at a public hearing and ask questions of the Applicant’s witnesses and/or give testimony before the Board.

How can I object to an application that I do not like?

As stated above, any member of the public may appear at a public hearing and testify before the Board, whether in support of or in opposition to the application. In addition, objectors have the right to appear by an Attorney if they so choose. An objector may question the Applicant’s witnesses and present his or her own testimony in opposition to the application, which may include expert testimony to rebut the testimony of the Applicant’s experts. Based on our extensive land use law experience, we can assist you in presenting reasonable but persuasive objections to projects that may have a negative effect on your interests.

Why do I need a lawyer to start my own business?

There are many decisions to make when starting your own business and a qualified business lawyer can help you navigate through a lot of decisions. For example, you need not only to decide what type of business you’re going to start, but what form, as there are tax implications and filing requirements for each different type of business. You can operate as a sole proprietorship, partnership, Limited Liability Company (LLC), S-Corporation, C-Corporation or a Limited Liability Partnership (LLP). Each one has a different tax code which is complex and detailed. Our attorneys can help you navigate through which business is the best for you.

Kaufman, Semeraro and Leibman, LLP