Zoning and Planning

by Robert Abbott on 2/1/2016


You’ve purchased or plan to purchase a piece of commercial real estate and want to develop it for maximum benefit and return on your investment. What do you do, who do you need to work with and how long will it take? How much will it cost is too complicated to discuss in this article and is dependent on so many factors such as size of the parcel, the square footage that will be generated etc. Let’s then focus on the items we can cover.

Who do you need to retain? First, you need to retain a surveyor to provide you with a property map with not just metes and bounds, but topographic, utilities, trees and any intrusions or issues that affect the development of the property such as flood plains, underground or overhead services from the community or utility that limit development.

The next person you should retain is an architect to develop a design for the property in accordance with the zoning requirements for that site. While some people feel hiring a site engineer is the way to approach the initial design, we’ve found that the architect brings a creative mindset to the problem which can result in both a more imaginative as well as better use of the site by thinking “outside the box
“. Once the concept is selected, then a site/civil engineer can be retained to work out the details in coordination with the architect’s design. The design process can be a short as a week or as long as several months depending on the size and complexity of the project and the number of meetings with the owner to develop an approved site plan.

The next person is a zoning attorney. This is a key member of the team and should be someone who is both a zoning expert and known to the community because each community has its own personality and an attorney known to the board will smooth and shorten the process.

Which board? Planning or Zoning Board of Appeals? Typically this is determined by the attorney but briefly, the Planning Board approves a site plan that has been deemed to be in conformance to the zone whereas a Zoning Board of Appeals has the authority to approve a site plan where conformance with zoning either isn’t possible or the application is requesting a variance from the strict enforcement of zoning. Again, describing and explaining the variance process is perhaps a separate article. In some communities, you may be obligated to start in one and finish in the other. Some communities are exploring creating one entity with the power to do both. It depends on the community you’re working in.

The application for submission requires that the civil engineer prepare and submit virtually their complete engineering work which represents approximately 90-95% of their final construction documents where the architect will be required to submit plans and elevations of the building which describes how the building will work and what it will look like. Some communities require these drawings to be in color with material clearly delineated. The process of preparing the drawings for submission to the appropriate board takes approximately from 2 to 4 weeks, again depending on the size and complexity of the project. This submission must be filed 10 days prior to the hearing date for which your attorney has gotten the application on the agenda.

The attorney will typically hold at least one planning session with all the members of the team and will determine who is needed in addition to the architect and site/civil engineer. This might include a professional planner, traffic consultant, landscape architect and so on. The attorney will review the proposed testimony for each participant including you, the owner. The hearings generally occur once a month on a regular day and time. You and your team attend the meeting and when called by the attorney, are sworn in and present their testimony. They/we are then subject to questions from the general public as well as members of the board.

In a simple application, the process can be presented and concluded in one meeting and memorialized and voted upon at the next monthly meeting. There is also a 45 day appeal period following the approval, where someone can file a suit asking for reconsideration of the approval for various legal grounds so even having an approval means you may not want to file for a building permit the next morning unless you are sure there is no objection coming.

While that represents the minimal amount of time for approval, in truth, that is not the norm anymore and applications can take months to work through all the testimony by the professionals, questions and responses from the general public and the board and their professionals (their planner and their engineer and their traffic consultant as well as the police and fire officials), revising drawings, refilling the changes and then appearing and testifying. It’s not out of the norm for an application to take over a year – 12 hearings, where you, the developer, are paying for the attendance of your attorney and your team of professionals to sit and wait their turn to testify. I have not even addressed the issue where approval also requires approvals from the State Department of Environmental Protection for issues concerning flooding etc.

This is all balanced again an agenda where your application may be one of several. All of whom want to be heard properly and fairly and responded to. Its why development in New Jersey has become so complex, time consuming and expensive. Keep in mind that even after going through all the time and expense, you are not guaranteed approval and why development is sometimes the arena for developers with deep pockets and patience.

Allen Weitzman, Architect

Studio 5 Partnership, Architects/Planners
16-00 Route 208 South, Suite 305
Fair Lawn, NJ 07410

aweitzman@studio5p-architects.com

201-652-0555 ×215 v 201-390-0429 c