Time of Application Rule Clarified

September 19, 2016Articles In the Zone

The New Jersey Appellate Division clarified the “Time of Application Rule” in the case of Jai Sai Ram, LLC vs. The Planning and Zoning Board of the Borough of South Toms River and Wawa Inc.

Prior to the adoption of the Time of Application rule, courts applied the Time of Decision Rule, under which a decision concerning a land use application would be based on the municipal ordinance as it existed at the time of decision of the application or appeal.

The Time of the Decision Rule allowed a municipality to block a proposed development by changing the applicable zoning ordinance during the period when a development application was being considered by the appropriate land use board.

The clear purpose of the Time Application Rule at N.J.S.A. 40:55D – 10.5 was to assist developers and property owners by eliminating the Time of Decision Rule and fixing the rules applicable to a development application at the time the application was filed.

The New Jersey Legislature was concerned about situations where a developer would spend time and money pursuing an application only to have a municipality change the zoning to the developer’s detriment while the application was pending.

In this case, Wawa’s site was located partially in a highway development zone and partially in a residential zone. At the time the application was filed the proposed use was not permitted in either zone.

While the application was pending, the borough amended its zoning ordinance to permit on the property, Wawa’s combined gas station and convenience store and designated as a “single-use” retail sales and gasoline filling stations operated by a single business entity.

Nevertheless, the objectors argued that the application and the developer were constrained by the Time of Application Rule and asserted that the court apply the zoning in effect at the time the application was filed to be consistent with the time of application statute.

The developer argued, on the other hand, that the Time of Application Rule was not meant to constrain the developer from taking advantage of a later adopted more favorable ordinance.

Prior to this case land use practitioners discussed a proper procedure for taking advantage of a later adopted favorable ordinance under the Time of Application Rule. Many practitioners thought that the better practice was to withdraw, without prejudice, and then refile the application relying on the later adopted ordinance there by obviating the issue of the Time of Application Rule.

The court clarified the matter by acknowledging that while the literal terms of the statute could be construed to prevent a favorable land use amendment from applying to a pending application, that reading would be completely contrary to the purpose of the legislation.

The court indicated that in construing legislation the overriding goal is to give effect to the legislature’s intent. Ordinarily the best indicator of that intent is the plain language of the statute. However, the court does not follow that rule when to do so would produce an absurd result at odds with a clear purpose of the legislation.

Accordingly, the court concluded that the statute does not apply where the local zoning is amended to specifically permit the use which is the subject of a variance application.

In that situation the variance is no longer necessary, and it would be absurd, as well as contrary to the legislatures purpose to hold the applicant to the less favorable standards of the pre-existing ordinance.

As a result the court found that Wawa could use the later adopted favorable ordinance, which eliminated the need for variances in spite of the Time of Application rule and the board’s approval of Wawa's application was affirmed.