The long-awaited “time of application” law, which locks in zoning under New Jersey’s Municipal Land Use Law at the time an application for development is filed, took effect on March 5, 2011.
Text of the Law: N.J.S.A. 40:55D-10.5 Developmental regulations, certain, govern review of application.
1. 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.
2. This act shall take effect one year next following enactment.
Approved May 5, 2010.
Commentary by Howard D. Geneslaw in the Gibbons Property & Law alert: The law was intended to undo the “time of decision” rule under which the New Jersey Supreme Court, in Manalapan Realty v. Township Committee, 140 N.J. 366 (1995), decided that a municipality could change its zoning to negatively affect or even prohibit a project which was already under review by the municipal planning board. As a result, developers often were at peril if community opposition developed during the review and approval process and a change in regulations followed.
As of today, the development regulations which apply to a project will be those in effect on the date the application is filed with the municipal land use board. The new law, S-82, approved as P.L. 2010, Chapter 9 and codified at N.J.S.A. 40:55D-10.5, allowed municipalities a year to revise and update their development regulations. That year has elapsed, and municipalities are now presumed to have gotten their zoning house in order.
Beginning May 5th, 2011, developers will be accorded the ability to rely on the development regulations which are in effect at the time they file their application, without fear of an unexpected zoning amendment if opposition develops to their proposal. The law which follows a number of unsuccessful efforts in recent legislative sessions to enact a “time of application” rule. Finally, its time has come.
From NJ Zoning Watch: Some have questioned whether the law applies to applications filed and deemed administratively “complete” or if it simply is the mere filing of the application for development that grandfathers the existing zoning. Based upon the fact that the language of the new law speaks in terms of “submission of an application for development,” it appears that the time of filing, not the determination of completeness, will control.
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