By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Zoning Attorney
The “time of application rule” set forth in N.J.S.A. 40:55D-10.5 provides that municipal zoning regulations in effect “on the date of submission of an application for development” govern the review of that application. Under the prior time of decision law, a municipality was free to change its zoning ordinance during the pendency of a site plan application “even if the zoning ordinance was amended to retaliate against newly filed application so as long as the amendment is consistent with the Municipal Land Use Law (MLUL),” N.J.S.A. 40:55D-1-163. The current law marks a decisive shift from the “time of decision rule” previously applied by our courts, in which a land use decision was “based on the municipal ordinance as it existed at the time of the application or appeal was being decided.” The stated purpose for the enactment of the new law (N.J.S.A. 40:55D-10.5) was to protect landowners and developers from the inequity that occurred when an application was filed and efforts and expenses were incurred by an applicant prior to changes to the ordinance.
A recent case presented a question of first impression: when is a submission to the planning board an “application for development” that triggers the “time of application rule”.
The defendant Township and the Zoning Board of Adjustment argued the time of application statute does not apply until the application for development is “deemed complete”. Conversely, plaintiff argued “the submission of a substantial, bona-fide application which does not constitute a sham, and one which gives the Township sufficient notice of the application and an understanding of the development being proposed by the applicant, is sufficient” for the protection of the time of application statute, or at a minimum the application should be grandfathered to protect the applicant.
The Court concluded that, the plain language of the relevant provisions of the Municipal Land Use Act requires a submission to include the “application form and all accompanying documents required by ordinance for approval” for the time of application rule to apply. In my next post, I’ll discuss the case in greater detail.
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