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Dinizo v. Planning Board of the Town of Westfield

312 N.J. Super. 225, 711 A.2d 425 (Law Div. 1998)

ZONING; VARIANCES—If a subdivision or variance application is wrongly denied, then reversed on appeal, a subsequent change to the zoning law will not adversely affect the approval. In such cases, the “time of the decision” rule does not apply.

A property owner sought variances for a proposed subdivision of his property into two lots. The variances were for preexisting, nonconforming conditions. The municipal planning board denied the application, finding that the negative criteria of N.J.S. 40:55D-70 were not satisfied. Shortly thereafter, the municipality adopted an ordinance which would have required the owner to obtain further variances before being allowed to subdivide. The owner claimed the board’s decision was arbitrary, capricious, and unreasonable. The board claimed that the “time of the decision” rule would apply, and that any reversal of its initial decision to deny the subdivision would now be invalid under the newly adopted zoning ordinance.

The Court reversed the board’s conclusion that the negative criteria were not satisfied, finding it arbitrary, capricious, and unreasonable. Satisfaction of the negative criteria requires showing that a use variance can be granted without substantial: (1) detriment to the public good; or (2) impairment of the intent and purpose of the zoning plan and ordinance. In determining whether a variance would be a substantial detriment to the public good, a board must evaluate the impact of the variance on adjacent properties, and whether there would be substantial damage to the character of the neighborhood. Focusing on the word “substantial,” the Court found that the variances would not have a substantial detriment on the public good, especially because those variances existed before the owner applied for board approval. After finding that the municipality had previously approved a change to the master plan that was consistent with the variances sought, the Court concluded that the board’s denial of the variances was inconsistent with the intent and purpose of the master plan.

The board then argued that the “time of the decision rule” was dispositive of the ultimate outcome of this case. This rule states that the zoning ordinance in effect at the time a case is ultimately decided controls, rather than the ordinance in effect at the time of the board’s hearing. However, one of the exceptions to this rule is where an applicant for a variance has rights vested by statute. The Court cited a 1984 Appellate Division decision which stated that where an applicant has been wrongfully denied site plan approval, a zoning amendment passed during the pendency of the appeal which would otherwise prohibit the proposed use, would not affect the right to the approval. This is because N.J.S. 40:55D-49 states that the recipient of preliminary site plan approval is protected for two years from zoning amendments barring or restricting the proposed use. Thus, according to the Court, an applicant should have the benefit of the statutory protection against zoning amendments which “outlaw his wrongly denied relief.” After finding that the property owner in this case was wrongly denied relief, the Court summarized by stating that if the application had been granted, as it should have been, it would have been protected by that statute. Accordingly, it concluded that the property owner in this case “became vested with this statutory protection when he submitted his conforming application to the Board.” It went on to hold that even if there was no benefit from statutory vesting, the time of the decision rule should be reevaluated so that an applicant knows how zoning ordinances affect development plans. Under the current “time of the decision rule,” applicants only know that the relevant laws affecting their variance applications may change at any time.


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