Is "Time of Decision Rule" Applicable in United Water Property?

At Tuesday's meeting of the planning board, the board proposed amending the master plan to mark as open space the land that will be acquired through flood mitigation grants provided by the Federal Emergency Management Agency (FEMA) and the Green Acres Grant Program. A condition of the grants is that the master plan reflect that the land has been reverted to open space.

Mayor Ann Subrizi asked the board attorney, Richard J. Abrahamsen, if the planning board could also amend the master plan regarding the United Water property. Although the United Water property is currently zoned residential, page 56 of the Borough's 2004 Master Plan explicitly deems the property "currently underutilized" and recommends mixed-use development. The developers of the United Water property, New Milford Redevelopment Associates, are hinging much of their argument before the Zoning Board on the language of "mixed-use development" as designated in the master plan. 

Abrahamsen said that under the "Time of Decision Rule" municipalities can amend a master plan with regard to zoning even if an application was already under consideration. The "Time of Decision Rule" would allow the board to amend the language on page 56 of the master plan despite the fact that the site plan hearing is underway before the Zoning Board. 

The “Time of Decision Rule,” has allowed municipalities to amend their land use ordinances after an application for development has been filed, often in reaction to a specific plan for development.

The language of "Time of Decision Rule" states that whatever statute or ordinance is in effect at the time the board's decision is made is the one that will govern the decision. Abrahamsen said that the rule pertains to amending statutes and ordinances, not the master plan. 

However, in May, 2010 Christie signed Senate Bill 82 (Assembly 437), commonly known as the “Time of Application” bill. This addition to New Jersey’s Municipal Land Use Law states that development regulations (statute or ordinance) in effect at the time that a site plan is submitted is the one that will govern the decision.

Any provisions of an ordinance, adopted after an application is submitted, is not applicable to that site plan application. The "Time of Application Rule" took effect May 2011.

Abrahamsen told Patch that both the "Time of Decision" and "Time of Application" rules concern amendments to ordinances only, and not to the master plan. Therefore, it is his opinion that the board is within the scope of their authority to amend the master plan at any time. 

In Mahwah, the developer of the --a proposed 600,000 square feet of retail space--filed their site plan application one day before the mayor and council voted to repeal the ordinance that changed the site use from office space to retail. The developer is arguing that the "Time of Application Rule" should apply here while the council says that the "Time of Decision Rule" should hold.  

Editor's note: During the course of the meeting, the Planning Board did not entertain making any decisions regarding amending the 2004 master plan to change the language pertaining to the United Water Company.