Legislature Primed to Nullify "Time of Decision" Rule
By: Henry T. Chou, Esq.
Committees of both houses of the New Jersey Legislature have now approved a proposed bill that would change New Jersey's longstanding "time of decision" rule, and the full Legislature is now poised to vote on the measure. On March 4, 2010, the Assembly Housing and Local Government Committee referred A-437 to the full Assembly. One month prior, on February 4, 2010, the Senate Community and Urban Affairs Committee referred its identical version of the bill, S-82, to the full Senate.
The proposed bill would create a new provision in the Municipal Land Use Law that nullifies the "time of decision" rule, which dictates that ordinances in effect at the time of a land use board's decision on an application are applicable, even if the ordinance was adopted after the application had been filed or had already been declared complete. Over the years, the "time of decision" rule has been commonly used by municipalities to harpoon disfavored development applications. The practice involved rezoning properties for which there were development applications pending, leaving many applicants with substantial sunk costs and loss of investment-backed expectations.
The new measure, which will be voted upon by the full Senate on March 11, 2010, and the full Assembly on a later date, provides that ordinances in effect on the date of filing of a development application govern the application, with the exception of ordinances relating to public health and safety. A stated goal of the proposed bill is to bring a measure of stability and certainty to the development application process.