In a case of first impression, the New Jersey Superior Court, Appellate Division, in Jai Sai Ram, LLC v. The Planning/Zoning Board of the Borough of South Toms River et al, Docket No. A-2075-014T2, a decision issued on July 27, 2016, which has been approved for publication and will therefore be precedential, held that the Time of Application Rule does not apply to bar a permitted use or require an applicant to re-file a development application in order to avail itself of more recent and more favorable zoning. The Time of Application Rule (N.J.S.A. 40:55D-10.5) was enacted to statutorily repeal the common law Time of Decision Rule. Pursuant to the Time of Decision Rule, a decision concerning a land use application would be based on the municipal ordinance as it existed at the time the application or appeal was being decided (as opposed to the time the application was made). The Time of Decision Rule therefore permitted municipalities to effectively nullify a providently filed challenge to a zoning or planning denial by changing the applicable municipal ordinances while the challenge was being litigated, or even while an application was pending. In such cases, the ordinance in effect at the time of the decision on the application, rather than at the time the application was made, governed the application. The legislature enacted the Time of Application Rule because it was "concerned about situations where a developer would spend time and money pursuing an application, only to have a municipality change the zoning to the developer's detriment while the application was pending."
In the Jai Sai Ram case, the applicant applied for a use variance for a gas station and convenience store at a time when neither was a permitted use in the zone. The defendant Planning/Zoning Board granted the application. Following the approval, the plaintiff, Jai Sai Ram, LLC, an objector, challenged the grant of a use variance by filing a complaint in lieu of prerogative writs with the Law Division. The Law Division affirmed the Board's approval, and plaintiff appealed the Law Division's decision to the Appellate Division. While the appeal was pending in the Appellate Division, the municipality amended its zoning ordinance to specifically designate gas stations with accompanying convenience stores as permitted uses in the respective zone. The plaintiff argued that under the Time of Application Rule, the use in question was a non-permitted use, and therefore, the Appellate Division had to apply the zoning regimen in existence at the time the application was made, rather than the new permissive zoning regimen.
The Appellate Division concluded that "while the literal terms of the statute could be construed to prevent a favorable land use amendment from applying to a pending application, that reading would be completely contrary to its purpose." The Court concluded that the Time of Application Rule "does not apply where the local zoning is amended to specifically permit the use which is the subject of a variance application." In so doing, the Court reasoned that "the variance is no longer necessary, and it would be absurd, as well as contrary to the Legislature's purpose, to hold the applicant to the less favorable standards of the pre-existing ordinance." Moreover, the Appellate Division concluded that the appeal became moot by virtue of the amendment specifically permitting the use.The import of this decision is significant in that the Time of Application Rule cannot be turned on its head to prohibit a requested use which is later made conforming by municipal action during the pendency of the application process or subsequent litigation. It also clarifies that an applicant need not re-file its application in order to qualify for more favorable zoning adopted after the original application had been filed.
Christopher Stracco, Craig Gianetti and Katharine Coffey authored an article, "A Movement in New Jersey to Protect Land Use Applicants from Sham Litigation by Business Competitors," for Law360.
John Cerreta and Jennifer Shukla authored an article, "Navigating Recent Changes to Connecticut Design Law," for the Connecticut Law Tribune.
On May 25, the Federal Bar Council held a CLE, entitled: "Second Circuit Appellate Advocacy Workshop," which was coordinated by Dan Wenner.
Mark Salah Morgan, Maureen C. Pavely and Michael L. Fialkoff authored an article, "Authenticating Social Media Evidence in NJ Courts," which was published by the New Jersey Law Journal.
John Cerreta wrote an article, "Design Defects at the Connecticut Supreme Court: A Doctrine in Flux," for The Connecticut Law Tribune.
Michael Furey was quoted in three separate articles in Politico, the New Jersey Law Journal and Law360 regarding his oral argument before the New Jersey Supreme Court of an appeal of an important discovery order by the firm's hospital clients.
John Cerreta was quoted in an article, "John Cerreta Talks Clerking for Alito, Commercial Litigation Changes" in the Connecticut Law Tribune.
On January 5, Day Pitney hosted a speech by Robert L. Capers, the U.S. Attorney for the Eastern District of New York, to the White Collar Crime Committee of the American Bar Association's Business Law Section (WCCC) at the firm's New York City office.
Erick Sandler was elected to the board of directors of the Connecticut Supreme Court Historical Society at its annual meeting on May 12. The Connecticut Supreme Court Historical Society promotes and preserves the state’s judicial and constitutional tradition through scholarship, memorials, publications and education. Erick is the chair of Day Pitney's Appellate Practice group.
Howard Fetner was quoted in an article, "Judge Allows Company to Withhold Benefits From Departing Employee," in The Connecticut Law Tribune. Fetner represented Community Health Center, Inc. (CHC), a statewide company that provides health care services to low-income patients, in a case in which a former CHC employee sought to recover compensation for unused paid time off. Following a trial, the court ruled in favor of CHC, reinforcing an employer's right to condition the payment of compensation for accrued fringe benefits upon an employee's giving a specified amount of advance notice of termination.