United States: ‘Time of Application Rule' Allows Developers To Take Advantage of Changes in Zoning Laws During Pendency of Application, NJ Appellate Division Rules

New Jersey developers received some useful guidance in a case recently decided by the Appellate Division relating to (1) whether a developer can take advantage of a favorable change in a local zoning ordinance that occurs subsequent to the date that the developer submitted its pending application in light of New Jersey's "Time of Application Rule;" and (2) their ability to rely on the Nonstructural Strategies Point System matrix, which was informally promulgated by the New Jersey Department of Environmental Protection, in demonstrating compliance with municipal stormwater regulations.

In RUPE v. Planning Bd. of the Township of Hamilton, No. A-4794-13T1 (App. Div. 2015), the developer, Hamilton Crosswicks 130, LLC, initially filed an application with the Hamilton Township Zoning Board of Adjustment seeking a conditional use variance as well as preliminary and final site plan approval in order to construct a Wawa convenience store and gasoline service station on its property commonly known as Deer Path Plaza. The subject property contained existing retail development consisting of a strip shopping mall and a separate free-standing building occupied by an Army and Navy store. These existing retail buildings were served by on-site parking fields and two stormwater detention basins. The developer proposed to demolish the existing 12,605-square-foot Army and Navy store building to enable Wawa to construct in its place a 4,691-square-foot convenience store and a gasoline station with 12 fueling positions under a 4,710-square-foot canopy.

At the time the developer submitted its application, convenience stores were a permitted use in the relevant zoning district, and gasoline stations were designated as a conditional use. One of the applicable conditional use standards required that no gasoline service station be located within 1,500 feet of another gasoline station. Because there was an existing gasoline station less than 1,500 feet from the subject property, the developer submitted its application to the Zoning Board of Adjustment for a conditional use variance along with preliminary and final site plan approval.

Subsequent to the developer's submission of its application to the zoning board, but prior to the first public hearing on the matter, the Hamilton Township governing body amended the zoning ordinance to delete the 1,500-foot separation requirement from the conditional use standards applicable to gasoline stations. The effective date of the amendment was May 9, 2013. Following passage of the amendment, counsel for the developer submitted a letter to the township's land use coordinator requesting that he "deem the application [to the Zoning Board of Adjustment] be withdrawn effective May 10, 2013, and refiled as of that date before the Township Planning Board." The land use coordinator complied with this request, and the developer's application proceeded before the Township Planning Board.

One of the principal issues before the planning board was the extent to which the proposed development complied with Hamilton Township's stormwater control ordinance applicable to "major development." The developer contended that it was not required to demonstrate compliance with the stormwater standards pertaining to the quality of runoff generated from the proposed development because its proposal called for the creation of less than a quarter acre of additional impervious coverage. Nevertheless, at the request of the planning board's engineering consultant, the developer submitted a report addressing the quality of the stormwater runoff to be generated by its development proposal and incorporated therein an analysis using the Nonstructural Strategies Point System (NSPS) matrix that had been promulgated informally by the New Jersey Department of Environmental Protection (NJDEP).

At the conclusion of the second public hearing, the planning board voted to grant the developer conditional use approval, amended preliminary and final site plan approval and certain waivers. In its memorializing resolution, the planning board expressly stated that it found the developer's testimony with respect to compliance with the township's stormwater ordinance to be credible, and concluded that the proposed development complied with the township's ordinance as it pertains to stormwater quality, regardless of whether, strictly speaking, the proposed development was exempt from these requirements or not.

The plaintiff, RUPE, LLC (the owner of a competing gasoline station located within 1,500 feet of the subject property), appealed the planning board's approval. The plaintiff argued, among other things, that the planning board lacked jurisdiction to hear the developer's application because, at the time the application was filed, it required a d(3) conditional use variance that can be granted only by the zoning board. The plaintiff also argued that, since the NJDEP had promulgated the NSPS informally, without complying with the requirements for formal administrative rulemaking outlined in the New Jersey Administrative Procedure Act, the planning board's reliance on the developer's stormwater management report containing an NSPS matrix to show compliance with the township's stormwater ordinance was arbitrary, capricious and unreasonable, citing the Appellate Division's holding in In re Authorization for Freshwater Wetlands Statewide General Permit 6, 433 N.J.Super. 385 (App. Div. 2013). The trial court rejected all of the plaintiff's arguments and upheld the planning board's approval. On appeal, the Appellate Division affirmed the holding of the trial court.

To determine the threshold issue of the planning board's jurisdiction to hear the developer's application, the Appellate Division examined New Jersey's "Time of Application Rule," and the legislative history leading to its adoption. The "Time of Application Rule" is codified at N.J.S.A. 40:55D-10.5 and reads as follows: "Notwithstanding any provision of law to the contrary, 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 provisions 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 applying the "Time of Application Rule" to the facts of RUPE, the Appellate Division looked beyond the statutory language to the legislative intent behind its enactment. As the court noted, the "Time of Application Rule" was intended to benefit developers by shielding them from the often harsh and inequitable consequences of the previously applicable "Time of Decision Rule," which generally subjected developers to changes in law, sometimes adopted in direct response and opposition to the developer's proposed project, after considerable amounts of time and money had already been spent preparing and prosecuting the development application in reliance on the state of the law at the time of its initial submission. In RUPE, the change in law at issue (i.e. the township's repeal of the 1,500 foot separation distance requirement applicable to gasoline stations) favored the developer. The court held that, given its ameliorative intent, there is nothing in the "Time of Application Rule" to prevent a developer in such circumstances from withdrawing and refiling a development application to avail itself of the favorable change in the law. Accordingly, the Appellate Division validated the withdrawal and refiling procedure requested by the developer's counsel and agreed to by the township's land use coordinator, allowing the developer to avail itself of the favorable change in the ordinance and vesting the planning board with jurisdiction over the application.

RUPE also argued on appeal that the planning board's decision was invalid because it determined the developer's compliance with the township's stormwater ordinance by relying on the NSPS, which RUPE argued was contrary to the Appellate Division's holding in In re Authorization for Freshwater Wetlands Statewide General Permit 6, 433 N.J.Super. 385 (App. Div. 2013). In that case, the Appellate Division ruled that the NJDEP's failure to follow the formal administrative rulemaking procedures set forth in New Jersey's Administrative Procedure Act in adopting its NSPS stormwater evaluation system was improper. As the Appellate Division explained in its RUPE holding, In re Authorization should not be interpreted to mean that the NJDEP's NSPS matrix has no evidential value. On the contrary, the RUPE court expressly held that it was not arbitrary, capricious or unreasonable for the planning board to utilize the NSPS tool that NJDEP had informally promulgated in the planning board's efforts to apply the township's stormwater ordinance and evaluate the effects that the developer's project would have on the quality of stormwater runoff.

The RUPE case makes clear that New Jersey's "Time of Application Rule" does not prevent a developer from taking advantage of a favorable change in the applicable zoning ordinance that becomes effective subsequent to the initial filing of the developer's application and provides procedural guidance as to how this can be accomplished. In addition, it supports the use of the NJDEP's NSPS scoring matrix, promulgated without the required formalities of administrative rulemaking, in demonstrating compliance with a municipality's stormwater management ordinance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.