Suppose a developer owns a 276-unit garden apartment complex in a General Business Zone, where garden apartments are a permitted conditional use, and the developer seeks approval for an additional 55 apartments in an adjoining 6.93-acre tract. And suppose that an ordinance eliminating garden apartments as a permitted use in the zone is introduced, scheduled for public hearing and enacted during a month-and-a-half period, with specific notice to the developer 18 days before enactment. And finally, suppose that the developer submits its 55-unit application one day before the prohibitory zoning ordinance is enacted. On these facts, are the 55 units treated as a permitted use or a prohibited use?
Prior to May 5, 2011, the decisions of the municipal board, the Law Division, the Appellate Division and the Supreme Court would be bound by the prohibition of garden apartments in the General Business Zone so long as the prohibitory ordinance became effective prior to any such decision. Under this common law “Time of Decision Rule,” zoning amendments were binding as to any decision that had not yet been rendered.
