Thursday, August 18, 2011

NJ's Time of Decision Rule

On May 5 of this year, a new law took effect in New Jersey changing its “Time of Decision” doctrine. Up until then, New Jersey had always followed the rule that if a change in the law took place between the time of an application and the time of issuance of the approval, the new law was effective. This was true even if the new law was introduced and passed in direct response to the application. In other words, if the municipality changed the rules during the course of the game, that was okay.

The new law changes that. It reads:
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 necessary for the protection of 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.
NJSA 40:55D-10.5.
How the law will be interpreted will certainly be interesting. The last sentence, excepting new laws “necessary for the protection of health and public safety” could certainly be argued on virtually any municipal ordinance. But overall, this is a welcome advance and certainly something which would be appropriate here in Tennessee. We follow the same old rule, allowing municipal government to change the rules during the course of the game if it so desires. The trouble with that is that ultimately allows for abuse: the rules are changed simply to stop a particular project without really evaluating the project's desirability.

Tennessee should follow the bright line approach that a significant number of states are now following, including it would appear, the state of New Jersey. Once the application is filed, only the rules applicable at the time of the filing of the application would apply to the project. Any new rules would apply to new projects, but not to projects which have already submitted the application. Perhaps someday in the future legislation to that effect could be considered by the Tennessee General Assembly.

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