In Jai Sai Ram, LLC et al. v. Planning/ Zoning Bd. of the Borough of S. Toms River et al., the Appellate Division held that the time of application rule does not apply where, after a property owner or developer submits an application for a use variance, the municipality amends the zoning ordinance to specifically permit that use in the zone.
The Legal Background
The time of application rule applies to municipal development regulations. It provides:
Notwithstanding any provision of law to the contrary, those development regulations which are in effect on the date of submission of an application for development shall govern the review of that application for development and any decision made with regard to that application for development. Any provisions of an ordinance, except those relating to health and public safety, that are adopted subsequent to the date of submission of an application for development, shall not be applicable to that application for development.
Under the prior “time of decision” rule, the zoning regulations in effect at the time the planning board or zoning board decided the application were applied. As highlighted by the court, the time of application rule, set forth in N.J.S.A. 40:55D- 10.5, was enacted to address “situations in which 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.”
The Facts of the Case
Wawa, Inc. sought to build a combined convenience store and gas station on property 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 and a use variance was required. Over the objection of Plaintiffs Jai Sai Ram, LLC and Sunil Dhir, the Planning/Zoning Board of the Borough of South Toms River (Board) granted the use variance, as well as several other approvals required for the project to proceed. The plaintiffs filed an action in lieu of prerogative writs, and the trial court affirmed the Board’s decision.
While the plaintiffs’ appeal was pending, the municipality amended its zoning ordinance to specifically designate “single use retail sales & gasoline filling stations operated by a single business entity . . . not part of a planned development” as a permitted principal use in the zone.
The Court’s Decision
The Appellate Division concluded that the time of application rule did not apply, and the developer was entitled to the benefit of the ordinance as amended.
“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 its purpose,” the appeals court held.
In reaching its decision, the court concluded the time of application rule “does not apply where the local zoning is amended to specifically permit the use which is the subject of a variance application.” The panel reasoned that “the variance is no longer necessary, and it would be absurd, as well as contrary to the Legislature’s purpose, to hold the applicant to the less favorable standards of the pre-existing ordinance.”
For more information about the zoning case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.