December 2, 2009
Re: URGENT LEGISLATIVE ALERT - A-4280 & S-3045, Time of Decision
Municipal Clerks: Please forward this notice to the Mayor, Governing Body, Municipal Attorney, members of Land Use Boards and Land Use Attorneys
Legislation, A-4280, that would effectively eliminate the “time of decision” rule was introduced in the General Assembly on Monday by Assemblymen Jerry Green (D-22) and Fred Scalera (D-36.) We expect companion legislation, S-3045, to be introduced by Senator Sweeney in the coming days.
These bills would eliminate the “time of decision” rule and grant protection to any Land Use application once it has been submitted for consideration by 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 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.
Section 2 of these bills would require the NJ Economic Development Authority (EDA) to issue a report assessing the economic impacts of the change to the time of decision rule on construction.
We are concerned that this infringement on local zoning discretion could quickly be fast-tracked during the lame duck legislative session. Thus, we urge you to contact your Assembly representatives and ask them to oppose A-4280 and ask your State Senator to oppose S-3045.
Questions on these bills can be directed to Mike Cerra at firstname.lastname@example.org or at (609) 695-3481 x120.
Very truly yours,
William G. Dressel, Jr.