If you’ve followed some of the recent land use exploits of our office, you know that the new Time of Submission Law is being tested in the Crossroads Mahwah Site Plan filing. After years of pursuing a rezoning, Mahwah voted in favor of retail at the 100 acres that is the International Crossroads site. Some months later the same Council decided to attempt to repeal that rezone, ostensibly to allow the results of a non-binding referendum to be weighed. Only a day or so before that final repeal vote, the full site plan application was filed by this office. Under NJSA 40:55D-10.5, the Ordinances in effect at the time of filing control. Thus, the repeal had no effect.
While we continue to process our site plan application as originally filed, the first case on topic has come down from the Appellate Division. Village Supermarket v. Garwood Planning Board dealt with an attempt to use the Time of Submission law to void a Use Variance approval where the municipality had actually passed an Ordinance permitting the use during the pendency of the matter. Literal interpretation of the Time of Submission statute would have required voiding the approval. But the Court took a practical approach, noting that the applicant could simply withdraw the approved and litigated application, refile and no longer require a Use Variance. The Court noted that the original intent of the Time of Submission law was to protect owners/developers. To decide to the contrary would be entirely at odds with that purpose and intent.
This pragmatic decision is a rare win for the development community
James E. Jaworski is a Senior Partner at WJ&L. He also heads up our Real Estate Department and actively practices in Land Use and Development areas.