New Jersey's "Time of Decision" Rule: Time for Change

 If you have done any type of development work in New Jersey, you are probably familiar with the "Time of Decision Rule." And if you have been on the "developing" side of that work, it is likely you find the rule one of the most illogical and onerous rules in New Jersey. 

The "Time of Decision" rule is a judicially recognized principle that development decisions are to be made on the basis of laws, ordinances, and regulations in effect at the time the decision is rendered. The rule gives municipalities the authority to amend zoning ordinances while a development application is pending, in direct response to an undesirable application

It should be noted that most states do not have such a rule. In Pennsylvania, for instance, development applications are decided based upon zoning ordinances in effect at the time of submission of the application .

Some New Jersey legislators have recognized the problem with this rule. On January 8 of this year, A440 was introduced to eliminate the "Time of Decision" rule, and instead require municipalities to apply to applications the ordinances in effect at the time of submission. A440 was originally introduced last session as A3870 (S457).         

This is certainly not the first time the legislature has sought to limit or abolish the "Time of Decision" rule. In fact, bills of this nature have been introduced on numerous occasions For example, in the 2000-2001 session, a bill was introduced that limited the rule to applications that did not conform on the date it was deemed complete. A fully conforming application would be reviewed under the ordinances in existence at the time it was deemed complete. The bill did not pass.

By all accounts, A440 will likely fail as well. Entitlement to this "Time of Decision" rule is strongly ingrained in New Jersey, as evidenced by not only the numerous resolutions passed by municipalities opposing the predecessor bill, but also by the number of judges who have so adamantly spoken out in favor of this rule. The mere fact that these types of bills limiting or eliminating the rule continue to be introduced, however, should encourage developers that with time, the "Time of Decision" rule just might change.