January 28, 2010
Re: ELIMINATION OF “TIME OF DECISION RULE” IS REINTRODUCED
Legislation that would effectively eliminate the “time of decision” rule was re-introduced in the in the new legislature. S-82 was filed and referred to the Senate Community and Urban Affairs Committee. Companion legislation, A-437, was introduced and referred to the Assembly Housing and Local Government Committee. We anticipate that other legislation which would also eliminate the time of decision rule could be introduced in the upcoming weeks and months.
These bills would eliminate the “time of decision” rule and grant protection to any Land Use application once it has been submitted for consideration to the municipal Planning Board or Zoning Board of Adjustment. Only changes in ordinances vaguely defined as “…necessary for the protection of health and public safety…”can be implemented to protect the public welfare. Otherwise, such an application would then be immune from any changes in municipal ordinances. Loopholes, errors, and the inability of legislative bodies to predict every possible negative impact in the drafting of general regulations should not serve to harm the public good.
The “time of decision” rule is a judicially-recognized principle that decisions are to be made on the basis of the laws, ordinances and regulations in effect at the time the decision is rendered. It is a rule created out of judicial respect for the separate powers vested in legislative bodies, and provides towns the mechanism to correct errors or close previously unanticipated loopholes, in statutory or ordinance language. Courts have applied this rule to allow municipalities to rectify an error in a zoning ordinance, thus giving the governing body the opportunity to perfect a legislative policy decision that had been found to be imperfectly expressed. The rule has also permitted a municipality to give initial legislative consideration to serious and substantial land use planning concerns that, for whatever reasons, had not been previously addressed in their ordinances.
We have a prepared a sample resolution with a distribution list opposing any such legislation for your consideration WORD PDF
Questions on these bills can be directed to Mike Cerra at email@example.com or at (609) 695-3481 x120.
Very truly yours,
William G. Dressel, Jr.