Asbury Park Zoning Board holds training on variances, nonconforming uses and design exceptions

The City of Asbury Park Zoning Board of Adjustment held an education session during its regular meeting on Tuesday, April 8, 2025, addressing how the board should handle interpretations, appeals, variances and design exceptions after the city’s 2021 zoning ordinance amendments and in advance of a planned 2027 reexamination.

The session opened with Chairman Abalone noting the meeting complied with the Open Public Meetings Act (P.L. 1975, c.231) and that it was being recorded by AEP TV. Board attorney Jack Soperco and zoning office staff member Donna led the presentation and discussion; no development applications were on the agenda.

Why it matters: The discussion focused on how board members should apply legal standards and record findings when residents or property owners seek relief from the zoning ordinance. The board was briefed on where authority lies between the zoning officer, the board and the courts; on the different legal standards for bulk (C) and use (D) variances; and on common practical problems that arise in an urban setting such as enforcement of preexisting nonconforming uses and how recent ordinance amendments (including a provision that requires attached garages to be set back five feet from the front building line) change the questions the board now sees from applicants.

Most important points

- Burden of proof and role of the board: Presenters emphasized that the burden to prove entitlement to relief rests with the applicant, not the board. Board members were reminded to assess whether applicants had proven their case by a preponderance of the evidence and to avoid turning testimony into a debate in which board members try to persuade witnesses.

- Types of proceedings: The session reviewed the board’s powers under the Municipal Land Use Law, distinguishing appeals of zoning officer decisions, requests for ordinance interpretations, C-variances (bulk relief) and D-variances (use relief), noting D-variances often require a supermajority (five affirmative votes) when the relief involves use or expansion of a nonconforming use.

- Design exceptions and historic-district context: Speakers described design exceptions as legally distinct from variances, typically judged under positive criteria tied to community design regulations. The board discussed how the city’s ordinance treats R-1/R-2/R-3 areas as local “historic districts” for design review (not National Register status) and how formally listed National Register properties may trigger additional review when federal funds are involved.

- Nonconforming uses and enforcement: Presenters reviewed the law on nonconforming uses — uses or structures that predate a zoning change — and cautioned that municipal staff have a limited, statutory one‑year window to issue zoning certificates for nonconformities after an ordinance change; thereafter only the board can resolve validity. The board discussed enforcement limits, staffing constraints, and the practical effect of decades of redevelopment that left many preexisting conditions on the city’s parcels.

- ADUs, pools, garages and common applications: The presenters said the city’s ADU (accessory dwelling unit) rules, as currently written, treat ADUs as separate accessory structures associated only with single‑ and two‑family houses (not as multi‑family conversions) and therefore many ADU questions are legislative or administrative rather than a routine ZBA matter. They described a recent ordinance change that requires an attached garage opening to be recessed five feet from the front building line (an attempt to avoid garages dominating front façades). The board also heard that staff have proposed counting pools or pool hardscape in impervious‑coverage calculations as part of broader stormwater concerns; that proposal remains under consideration.

- Deliberation and recordkeeping: Jack Soperco walked members through best practices for deliberation and drafting findings of fact: members should state briefly on the record the factual bases for their votes so that any later appeal has an articulated record. Soperco told members he is available for questions and provided his contact information to board members.

Quotes and attributions

- Chairman Abalone opened the meeting by stating, "This meeting is being held in compliance with the Open Public Meetings Act, Chapter 231, Public Law of 1975." (opening announcement)

- Board attorney Jack Soperco told members near the close of the session, "You have my cell number. You can call me anytime you like," offering staff support for future questions.

Votes at a glance

- Motion to adjourn: A motion to adjourn was made and seconded; the board recorded a voice vote in favor and the meeting concluded. Individual recorded votes on the motion were not specified in the meeting record.

Ending

Board members asked clarifying questions about specific subjects (for example, when a front balcony becomes a zoning issue or how the board should handle packages containing multiple requested variances). The presenters encouraged members to call staff or the board attorney when in doubt and said ordinance clean‑ups and additional amendments are expected later this year; staff indicated further outreach and notice will accompany legislative changes.

(There were no quasi‑judicial applications or final decisions on development projects at this meeting.)