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ordinance (typically known as a Hardship Variance); OR (2) that granting a variance to allow departure from the zoning ordinance would advance one of the purposes of the Municipal Land Use Law ( N.J.S.A. 40:55d-1 et seq. ["MLUL"]) and that the benefits of the deviation would substantially outweigh any detriment (typically known as the Special Reasons). Collectively, these are known as the Positive Criteria.
The granting of a ‘c’ variance requires the affirmative vote of a majority of the Board members present at the hearing.
The MLUL defines “peculiar and exceptional practical difficulties” and “exceptional and undue hardship” as:
- (a)[where] by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation... would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property...[N.J.S.A. 40:55D-70c(1)]
- Under N.J.S.A. 40:55D-2, the MLUL enumerates as its purposes:
- a.To encourage municipal action to guide the appropriate use or development of all lands in this State, in a manner which will promote the public health, safety, morals, and general welfare;
- b.To secure safety from fire, flood, panic, and other natural and man-made disasters;
- c.To provide adequate light, air, and open space;
- d.To ensure that the development of individual municipalities does not conflict with the development and general welfare of neighboring municipalities, the county, and the State as a whole;
- e.To promote the establishment of appropriate population densities and concentrations that will contribute to the well-being of persons, neighborhoods, communities and regions and preservation of the environment;
- f.To encourage the appropriate and efficient expenditure of public funds by the coordination of public development with land use policies;
- g.To provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial, and industrial uses and open space, both public and private, according to their respective environmental requirements in order to meet the needs of all NJ citizens;
- h.To encourage the location and design of transportation routes, which will promote the free flow of traffic while discouraging location of such facilities and routes which result in congestion or blight;
- i.To promote a desirable visual environment through creative development techniques and good civic design and arrangement;