Builders and developers must be very careful when seeking relief from municipal height restrictions.
Height variances are unique in that some may be considered bulk or C variances, while others may be considered special needs
or D variances. A municipal planning board has the power to grant bulk variances in connection with a site plan.
However, once a D variance is involved, the planning board is divested of jurisdiction and the applicant must appear before
the zoning board of adjustment. The failure to adhere to this strict jurisdictional requirement could result in the
invalidation of a site plan approval and significant waste of time and money having to start from scratch in front of the
appropriate board.
The Municipal Land Use Law states that the board of adjustment shall have the power to “grant a variance
to allow departure from regulations…to permit…a height of a principal structure which exceeds by 10 feet or 10% the maximum
height permitted in the district for a principal structure.” N.J.S.A. 40:55D-70(d)(6). In a case
styled Shri Sai Voorhees, LLC v. Township of Voorhees, recently approved for publication, the trial court was
faced for the first time with the question of whether an application to erect a principal structure exactly ten percent
higher than the zoned height limit requires a bulk C variance or a special needs D variance.
The trial court in Shri Sai analyzed both the language of the statute as well as the history
surrounding the enacting legislation and concluded that a request to erect a principal structure equal to or beyond ten
percent higher than the maximum zoned height requires a special reasons D variance. This type of relief may only be granted
by a zoning board of adjustment. As was the case in Shri Sai, a planning board is without jurisdiction to hear such a variance
and therefore any site plan approval is void ab initio. The court vacated the site plan approval and the developer was
required to start anew in front of the proper board, the zoning board of adjustment.
When applying to the planning board for a site plan approval, the applicant must make sure to keep
all height variance relief below ten feet or ten percent in order for the planning board to properly hear an application.
Had the request for relief in Shri Sai been reduced by just an inch, the site plan approval would have
been upheld.
Michael J. Lipari is an associate of Hill Wallack LLP in the Princeton office where he is a member of the Land Use Division which encompasses the Land Use Litigation and Land Use Applications Practice Groups. He concentrates his practice in the land development application and permitting process and in the litigation of land use matters.
