In March 2010, the General Assembly approved S-82/A-437, which would effectively eliminate the application by municipalities of the "time of decision" rule with respect to the applicability of ordinances, statutes and regulations to development applications. The bill was previously approved by the State Senate and now awaits the Governor's consideration.
The development community calls this bill the "time of application" bill since it would effectively freeze municipal zoning regulations with the mere submission of an application. The bill should be more appropriately tagged the "time of incomplete application" bill, since the submission of an incomplete application would grant vested rights to the developer.
Clearly, this legislation (S-82/A-437) goes too far in tipping the scales in favor of developers, and the Governor should not sign the bill.
Proponents of the bill argue this rule allows towns to act arbitrarily and rezone a property during process-right up until the ‘time of decision' on an application. These same proponents argue that this application of this rule inhibits economic development, and that this change would spur growth. They argue that the elimination of the rule is common sense. They are quite mistaken.
The time of decision rule is a judicially recognized principle that decisions are to be made on the basis of the laws, ordinances and regulations in effect at the time the decision on a development application is rendered by the municipality. Courts have applied the time of decision rule to allow municipalities to rectify an error in a zoning ordinance. The application of the rule is most certainly not an abuse of power, but rather a means to safeguard the public's interest.
This legislation would subject the public interest to a race between the developer and the time-consuming process that a municipality must undertake to revise its Master Plan and zoning ordinances. It is a race the municipality cannot win.
Further, the time of decision rule has been in place for decades, through both booming economic times and economic recessions. Somehow, the rule did not discourage economic development in booming years, but we are now expected to believe that it does in lean economic times? The rule is rarely used, and if abused by a municipality, the developer does have redress through the Courts. On those rare occasions when there is an unreasonable action, the Courts can - and have - acted to override actions.
Hundreds of local governments in New Jersey have spoken out in opposition to this legislation. They are joined in opposition by the League of Municipalities, the New Jersey Planning Officials, the NJ Chapter of the Sierra Club, the New Jersey Environmental Federation, the Conservation Foundation of New Jersey and the Association of New Jersey Environmental Commissions. Governor Christie now has the opportunity to balance the interests of developers against the public's interest. The public interest should prevail.
William G. Dressel, Jr. is the Executive Director of the New Jersey State League of Municipalities.