Time of Decision Or Not Time Of Decision? That Is The Question
By: Stuart D. Liebman
Members of the land use and development community here in New Jersey are waiting anxiously to see whether or not our new Governor, Chris Christie, signs the Bill that was recently sent to the Governor’s desk after being passed by the New Jersey Senate and Assembly. The Bill, S-58:A-437, will have a dramatic impact on real estate development.
Under the current law, there is a rule known as the “Time of Decision Rule.” For land use and development purposes, the rule means that when a local municipal planning or zoning board makes a decision on an application, it applies the law that is in affect at the time that they make that decision.
The real estate development community has complained about this for decades. When this rule is applied, it is really unfair. Here is what could happen: Someone who wants to buy land for development can spend tens of thousands, hundreds of thousands, or millions of dollars looking for and finding a property, paying engineers, architects, lawyers, and numerous other professionals to study the property and to make plans for development of the property. These monies are also spent paying municipalities for cost and expenses of applications, and often the property is bought and paid for. Under the current Time of Decision Rule, after all this money is spent, and time passes by, the town can elect to change its zoning ordinances which could either alter, or outright prohibit the kind of development that had been planned for, and perhaps has already been approved. New Jersey courts have ruled on this topic that a town can change its ordinances in direct response to an application that is filed.
If this Bill is signed by the Governor, it is set up to take effect one year after it is enacted. This should give New Jersey towns the time they need to fix up their ordinances before the playing field becomes level.
What do you think?