Agenda - Planning Commission - 11/03/2016

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Zoning Bulletin September 25, 2016 1 Volume 10 1 Issue 18 Toms River, 446 N.J. Super 338, 141 A.3d 407(App. Diu 2016) NEW JERSEY(07/27/16)—This case addressed the issue of whether the time of application rule, set forth under New Jersey statutory law—N.J.S.A. 40:55D-10.5—which says that the development regulations in effect on the date of submission of an application governs review of the application—ap- plies where, after a use variance application is filed, seeking relief under the existing zoning ordinance, the municipality amends the ordinance to specifi- cally permit the use which is the subject of the application. The Background/Facts: Wawa, Inc. ("Wawa") applied for a use variance to construct a combined convenience store and gas station on a piece of prop- erty that was located partially in a highway development zone and partially in a residential zone in the Borough of South Toms River(the"Borough").At the time Wawa filed the application for the use variance,the proposed use was not permitted in either zone. The zoning ordinance also prohibited two principal uses on a single lot. Later, in 2013, the Borough's zoning ordinance was amended to make the entire area surrounding Wawa's proposed project a special economic development ("SED") zone, instead of a partly highway commercial and partly residential zone. Nevertheless, the SED zone did not specifically provide for a combined gas station/convenience store use,and the zoning ordinance continued to prohibit the siting of two principal uses on a single lot. In January 2014, the Borough's Planning/Zoning Board (the"Board") ap- proved Wawa's application. The Board determined that the combined gas station/convenience store constituted one principal use of the property,and the Board granted a use variance for that particular commercial use. Jai Sai Ram,LLC and Sunil Dhir(the"Opponents") appealed the Board's decision.The trial court affirmed the Board's decision. The Opponents again appealed.While the appeal was pending,the Borough amended its zoning ordinance to specifically designate"single use retail sales &gasoline filling stations operated by a single business entity . . .not part of a planned development"as a permitted principal use in the SED zone. Wawa argued that given the zoning amendment, the Opponents' appeal of the Board's decision to grant Wawa the use variance was now moot.The Op- ponents maintained that it was not moot. The Opponents pointed to New Jersey's"time of application rule" (N.J.S.A.40:55D-10.5).That rule provides that the development regulations which are in effect on the date of submission of an application for development shall govern review of the application for development,and that subsequently adopted provisions of an ordinance"shall not be applicable to that application for development," except for those changes"necessary for the protection of health and public safety." DECISION:Affirmed. The Superior Court of New Jersey, Appellate Division, concluded that Wawa was entitled to the 2015 zoning amendment, which made its proposed use a permitted principal use in the applicable zoning district.Accordingly,the is court held that the Opponents' appeal challenging the Wawa's use variance was moot. In so holding,the court reviewed the intent of the New Jersey legislature in ©2016 Thomson Reuters 3