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It's About Time
By: Stuart D. Liebman, Esq.

Imagine that you are back in school. You have taken a particular class or course for the whole year, semester or whatever, and you have prepared thoroughly for your final exam. You carefully selected this course, paid your tuition, invested countless hours studying, bought books and materials, and attended classes. On exam day, you get up, get dressed, and confidently walk into the classroom to finish what you have started. Now imagine that when you walk in, you find that the school has changed the course from English Literature to Biology!

Burcam vs. Medford

Unfair? Cannot happen? There must be something wrong with this? This has been the rule of law when it comes to land use and development applications in New Jersey. In 1995, Home Depot made an application for a new store in Manalapan, and after the application was filed, the town zoning ordinances were changed to preclude the type of store that they wanted to build. The New Jersey Appellate Courts have described the rule as follows: “In the area of land use, a municipality may change its regulating ordinances after an application has been filed and even after a building permit has been issued and, as long as the applicant has not substantially relied upon the issuance of the building permit, it is subject to the amended ordinance. This is so even where the municipality amends its ordinance in direct response to the application.” (Burcam Corp. vs. Planning Board of Medford, 168 NJ Super 508, 512 App.Div. 1979). Municipalities say that they need this ability to change zoning in response to an application for development in order to protect the town's land use planning. Land owners and the development community say that they are entitled to rely upon the land use planning that the town has already done when they wrote their ordinances, and that the rules should not be changed at the last minute.

New Statute

Our State Assembly and Senate have passed a Bill to amend the Municipal Land Use Law (MLUL) to provide that “…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 provision 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.”

In our practice, we represent land owners and developers, as well as municipalities. We see both sides of the argument, however, we believe that it is not fair to turn English Literature into Biology overnight. Clear and certain land use regulations are always helpful to both sides. The NJ MLUL is a statutory scheme which, if followed by the municipalities, makes sense of this new “Time of Submission” Bill. It's about time!

Stuart D. Liebman, who practices actively in the Land Use area, is the Managing Partner of our firm.