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Maragliano v. Land Use Board of the Township of Wantage

403 N.J. Super. 80, 957 A.2d 213 (App. Div. 2008)

ZONING; TIME OF DECISION RULE — An applicant for a zoning variance who filed its application after a new zoning ordinance had been passed, but before its effective date, has no reasonable basis to assume its application would or should be reviewed under the old zoning ordinance.

A municipality adopted a new master plan which increased the minimum lot size in its R-1 zone from 40,000 square feet to five acres. The new plan was to be effective about two months after the ordinance’s adoption date. Four days after the ordinance was adopted, but before its effective date, a buyer of a thirty-one acre parcel applied for subdivision approval. Under the old master plan, the buyer’s application did not require variances with respect to the two parcels measuring less than the minimum five-acres. Under the new master plan, it did. Three days before the effective date of the new master plan, the municipal zoning board approved the buyer’s subdivision application but did not formalize the resolution until several months later. A neighbor challenged the buyer’s subdivision approval, claiming that the buyer should have been required either to seek a variance or comply with the new minimum lot sizes.

The lower court rejected the neighbor’s claim that the “time of decision” rule, which, if it were applicable, required the buyer’s application to be reviewed under the new zoning ordinance and not the prior ordinance. The neighbor appealed, and the Appellate Division reversed, noting that the “time of decision” rule requires a zoning board to apply the zoning ordinance in effect at the time of its decision (even if not in effect) and not the ordinance in effect when the application was filed. A municipality is entitled to change its regulations after an application is filed and even after a building permit is issued. In such cases, the property is subject to the new zoning ordinance unless the property owner substantially relied upon the issuance of its building permit. In this case, the Court found that the zoning board improperly approved the applicant’s application under the old zoning ordinance three days prior to the effective date of the new master plan. The board should have required the applicant to either submit a subdivision application that complied with the new minimum lot size requirements or require the applicant to apply for a variance.

The Court also rejected the applicant’s argument that it relied on its approvals. The Court found that applicant had no reasonable basis to rely on the old ordinance, since the applicant knew that the new master plan had been adopted several days before it filed its application and would be effective a month and a half later, and because the applicant’s approvals were not finalized until well after the new zoning ordinance became effective. It disagreed with the applicant’s arguments that equitable considerations should preclude the application of the “time of decision” rule. It concluded that the applicant, in applying for subdivision approval four days after the new zoning ordinance had been adopted, had no reasonable basis to assume its application would be reviewed under the old zoning ordinance and not the new one.


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