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The Borough of Paramus v. The Planning Board of the Borough of Paramus

A-6198-03T3 (N.J. Super. App. Div. 2005) (Unpublished)

ZONING; TIME OF DECISION RULE—A draft municipal ordinance need not be considered by a court when reviewing a land use board’s decision and an appellate court need not consider the same ordinance if it was adopted after the lower court has ruled.

A municipality appealed its planning board’s grant of conditional site plan approval and related variance relief to a shopping center that sought to expand its existing enclosed shopping mall. The expansion included an “Entertainment Lifestyle Precinct,” including a multiplex movie theater, an additional restaurant, and retail space. The plan called for demolition of an existing smaller movie theater to create parking facilities, and the elimination of an existing parking lot to be replaced by a landscape buffer. Following the planning board’s hearings, it issued a lengthy resolution in which it determined that it, and not the zoning board, had jurisdiction to review the application. It also “granted preliminary and final site plan approval, subject to a large number of conditions, as well as a variance for the maximum floor area restriction” required by the applicable ordinance. In its application to the Law Division, the municipality asserted that the planning board’s decision “was arbitrary, capricious, and unreasonable, and that the approved expansion of the [existing shopping center] would result in ‘overutilization of the site’ and ‘[would] have a substantial negative impact upon the neighborhood and the zone plan.’” The lower court affirmed the planning board’s approval and dismissed the municipality’s complaint with prejudice. On appeal, the Appellate Division upheld the lower court’s dismissal of the municipality’s case but commented on one of the municipality’s arguments. That argument was that the lower court should have “given determinative weight” when resolving planning board issues by making reference to an ordinance adopted by the municipality six months after the planning board issued its approval resolution. In fact, the ordinance was adopted by the municipality after the lower court entered its final judgment dismissing the municipality’s action. Apparently, during the trial before the lower court, “it was revealed that [the municipality] had recently drafted an ordinance ... as an attempt to clarify the zoning ordinances it intended to have govern such matters as the maximum floor area, height restrictions, and parking for the specific zones in which the ‘Entertainment Lifestyle Precinct’ would be located.” The municipality presented the draft ordinance to the lower court, but, because the resolution had been “tabled,” the lower court “did not consider its effect, if any, on the Planning Board’s approval of [the shopping center’s] application.” The ordinance played no part in the lower court’s decision. After entry of final judgment by the lower court, but before the municipality filed its notice of appeal, the municipality enacted the ordinance. Despite a number of procedural moves on the part of the municipality, it was never successful in having the approvals considered in light of the newly adopted ordinance.

The municipality “argue[d] that the ‘time-of-decision rule’ should [have applied] in this litigation and that [the Appellate Division] should [have] consider[ed] the effect of [the ordinance].” The Court rejected that argument “as without sufficient merit to warrant discussion” in its opinion. What it had to say was that the lower court correctly recognized that the ordinance was “inapplicable to the variance relief and amended site plan approval” obtained by the shopping center. Essentially, once a final site plan application was approved, an applicant’s rights are vested.

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