By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Zoning Law Attorney
In Jai Sai Ram, LLC v. Planning/Zoning Bd. Of the Borough of South Toms River Township, the plaintiffs (owners of Wawa) applied for a use variance to construct a Wawa convenience store and gas station on a property that was located partially in a highway development zone and in partly in a residential zone. The proposed use was not permitted in either the highway development zone or the residential zone. The proposed site was located in the Pinelands. Pursuant to N.J.S.A. 13:18A-11, this particular property was designated as a Pinelands Regional growth area where commercial development was actually encouraged “in order to accommodate regional growth influences in an orderly way.” The municipality granted the variance, in part. However, part of the plaintiffs’ request was not granted and they appealed. During the appeal process, the municipality amended its zoning ordinance. When the plaintiffs (a competing gas station) discovered this change they appealed as well. The court ruled that the “time of application” rule actually applies to municipal development regulations. Before this rule was adopted, a decision concerning a land use application can only be based on the then existing municipal ordinance at the time the development application is being decided. This means a municipality cannot change the zoning on an applicant after they apply to the zoning board. The time of decision rule prohibits a municipality from blocking a proposed development by changing the applicable ordinances while the development application is being considered.
In this case, the municipality changed the ordinance to restrict Wawa to a single-use, which basically means that the plaintiffs could either use the land exclusively as a gas station or exclusively for a convenience store, but not both. The court reversed the township’s new ordinance and ultimately held that the time of application rule applied, which meant that the board was not allowed to change the ordinance when this appeal was taking place.
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