Most Read Contributor in United States, August 2016
The New Jersey Appellate Division clarified the "Time of
Application Rule" in the case of Jai Sai Ram, LLC vs. The
Planning and Zoning Board of the Borough of South Toms River and
Prior to the adoption of the Time of Application rule, courts
applied the Time of Decision Rule, under which a decision
concerning a land use application would be based on the municipal
ordinance as it existed at the time of decision of the application
The Time of the Decision Rule allowed a municipality to block a
proposed development by changing the applicable zoning ordinance
during the period when a development application was being
considered by the appropriate land use board.
The clear purpose of the Time Application Rule at
N.J.S.A.40:55D – 10.5 was to assist
developers and property owners by eliminating the Time of Decision
Rule and fixing the rules applicable to a development application
at the time the application was filed.
The New Jersey Legislature was concerned about situations where
a developer would spend time and money pursuing an application only
to have a municipality change the zoning to the developer's
detriment while the application was pending.
In this case, Wawa's site was located partially in a highway
development zone and partially in a residential zone. At the time
the application was filed the proposed use was not permitted in
While the application was pending, the borough amended its
zoning ordinance to permit on the property, Wawa's combined gas
station and convenience store and designated as a
"single-use" retail sales and gasoline filling stations
operated by a single business entity.
Nevertheless, the objectors argued that the application and the
developer were constrained by the Time of Application Rule and
asserted that the court apply the zoning in effect at the time the
application was filed to be consistent with the time of application
The developer argued, on the other hand, that the Time of
Application Rule was not meant to constrain the developer from
taking advantage of a later adopted more favorable ordinance.
Prior to this case land use practitioners discussed a proper
procedure for taking advantage of a later adopted favorable
ordinance under the Time of Application Rule. Many practitioners
thought that the better practice was to withdraw, without
prejudice, and then refile the application relying on the later
adopted ordinance there by obviating the issue of the Time of
The court clarified the matter by acknowledging that while the
literal terms of the statute could be construed to prevent a
favorable land use amendment from applying to a pending
application, that reading would be completely contrary to the
purpose of the legislation.
The court indicated that in construing legislation the
overriding goal is to give effect to the legislature's intent.
Ordinarily the best indicator of that intent is the plain language
of the statute. However, the court does not follow that rule when
to do so would produce an absurd result at odds with a clear
purpose of the legislation.
Accordingly, the court concluded that the statute does not apply
where the local zoning is amended to specifically permit the use
which is the subject of a variance application.
In that situation the variance is no longer necessary, and it
would be absurd, as well as contrary to the legislatures purpose to
hold the applicant to the less favorable standards of the
As a result the court found that Wawa could use the later
adopted favorable ordinance, which eliminated the need for
variances in spite of the Time of Application rule and the
board's approval of Wawa's application was affirmed.
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.
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