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Nonetheless, there is no dispute that the activity constitutes manufacturing. The applicant could (and should) in this case file an application requesting relief in the form of an interpretation of the land use ordinance in order to determine whether the proposed use is permitted in that zoning district. An interpretation of the zoning map is also permitted.
For example, a zoning district may specifically permit retail stores, hotels, hair salons, and bakeries but does not list a bowling alley as a permitted use. The applicant could apply for relief under this section requesting a determination that a bowling alley is characteristically similar to the enumerated permitted uses.
In Ric-Cic Co. vs. Bassinder, 252 N.J. Super. 334 (App. Div. 1991), the court held that denying setback and off-street parking variances would create hardship where they would make development of the applicant's property impossible under the circumstances. The applicant was rebuilding a restaurant on an ocean pier which had no space for parking or for the required setbacks.
Note: Personal hardship is not grounds for granting the variance. Nor is a self-created hardship grounds for granting the variance such as when an applicant constructs a dwelling in ignorance and in violation of the required setbacks. Negligence or flagrant violation of the zoning laws will not be rewarded with a variance. The proper analysis focuses upon the hardship arising out of the conditions peculiar to a specific piece of property.
For example, where a stream crosses a rear yard a (c.) (2) variance may be approved to allow for adjustment of setbacks in order to protect the stream and prevent the degradation of the environment through improper use of land (i.e., one of the purposes of the Municipal Land Use Law).
For example, a marina use might be found suited for waterfront property in a residential zone. Likewise, a private hospital for the emotionally disturbed might be found suited for property in a residential zone. Generally, there may be special reasons for the grant of a (d.) (1) variance where the development advances a purpose of the Municipal Land Use Law or refusal of the variance might impose on the applicant an undue hardship.
Such a situation arises, for instance, where an auto repair business is conforming under an existing zoning ordinance but a subsequent amendment changes the district from general business to residential. A (d.) (2) variance would be required before the owner can construct additional garage space to accommodate more cars. By way of further example, consider a business which is located in a conforming 3-story building but a zoning amendment later limits building height in that zone to 2 stories. In this case, the owner of the building would require a (d.) (2) variance to construct a fourth floor.
A recurring complaint received from applicants whose requests for relief have been denied is that they were not familiar with the complex legal standards and burdens of proof when preparing for their hearing. Many applicants have left the hearing room disappointed and confused, feeling that an attorney could have made a difference.