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Carrington v. City of Jersey City

A-4381-01T2 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; TIME OF DECISION RULE—Even if a municipality drags its feet in proceeding with court hearings and files a delaying appeal, a zoning ordinance change adopted just before a judicial decision is reached is applicable to the contested zoning challenge, especially where the applicant had not yet incurred a great financial detriment.

An individual wanted a certificate of occupancy to use a particular building for a “summer camp,” or for other uses that the individual thought to qualify as a community facility. The certificate of occupancy was denied because even though the zone permitted a “community center,” the municipality’s zoning director believed that “community centers are structures built by the City for area residents… .” The applicant filed suit and, at the same time, filed a more formal application with the municipality. The second application was also denied on the theory that “the intent of the ordinance permitting community facilities was to allow a governmental entity to create a ‘Community Facility’ in, and for[,] the community at large and not for a ‘special group of persons.’”

The lower court determined that the municipality’s zoning board should hear the matter in 45 days so that a factual record could be developed. The municipality filed an appeal and the Appellate Division, in an earlier trip to that Court, affirmed the lower court’s order. Three months later, the municipality amended its zoning ordinance to provide that only municipal owned or operated community facilities were permitted within the zone. Then, the board finally heard the matter, nearly two years after the lower court originally ordered that it be heard. It denied the application based on the amended ordinance. The applicant argued that the application should have been grandfathered under the prior law and the lower court seemingly agreed, stating that “if municipalities are permitted, while the appeal process is pending, to change the rules in midstream and to change the ordinance that is the subject of the appeal, and make that applicable to the appellant ..., [] it would frustrate the administration of law and it would undermine the ... authority of the Court to rule on these matters and to have these matters and the judgments of the Court enforced.”

A further appeal was filed, but it was determined to be interlocutory and was remanded back to the lower court. In the remand, the parties were ordered to reargue the issue as to whether the new ordinance should have applied to the application. Following remand, the lower court held that the so-called “time of decision rule” applied. That rule means that, “[a]s a general rule, it is recognized that, with certain exceptions, it is the last governmental enactment which controls, even when such an enactment takes place after the matter has been concluded in the trial court and ends on appeal.” The lower court fully appreciated that the time of decision rule had been criticized, but pointed out that the rule was alive and well. It didn’t matter to the lower court that the original hearing was supposed to take place in early calendar year 2000, but did not place until October, 2001. It held that the municipality was entitled to take an appeal of the original court order and further held that the few months’ delay that took place after the municipality’s appeal was heard, was inconsequential. It was in that few month period in 2001 that the ordinance was amended. The lower court found that there was no detriment to the applicant because it had not spent any money or taken any special efforts in reliance on the existing ordinance. Further, the applicant had no rights vested by statute. In essence, the Appellate Division affirmed the lower court’s holding that the new ordinance was applicable to the application under the time of decision rule.

During the pendency of the matter, at least one other private “community facility” was approved by the municipality and there were a number of other community facilities operating within the zone. There was no record as to when those other community facilities commenced operation. Consequently, the Appellate Division looked at the applicant’s claim that the zoning board was “biased” against him and ordered that the municipality to “justify the denial of the certificate of occupancy to [the applicant] in light of the approvals granted to other facilities.”


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