Agenda - Planning Commission - 11/03/2016

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September 25, 2016 1 Volume 10 1 Issue 18 Zoning Bulletin adopting the time of application rule—N.J.S.A.40:55D-10.5.The court found the clear purpose of the law was to assist developers and property owners "to move forward without the unnecessary hurdle of constantly changing require- ments while the application is pending."The law effectively "prohibit[ed] municipalities from responding to an application for development by chang- ing the law to frustrate the application." The court found that "while the literal terms of the statute could be construed to prevent a favorable land use amendment from applying to a pend- ing application, that reading would be completely contrary to its purpose." The court held that the time of application rule—N.J.S.A. 40:55D-10.5— "does not apply where the local zoning is amended to specifically permit the use which is the subject of a variance application."In such a situation,said the court, "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 favor- able standards of the pre-existing ordinance." "Likewise," said the court, "where, as here, there is a pending appeal challenging the grant of the vari- ance, the appeal becomes moot by virtue of the amendment specifically permitting the use . . . because,even if[the court] were to decide the appeal in appellants' favor, the applicant could proceed with the project without the variance." See also: In. re Cayuse Corp. LLC, 445 N.J. Super: 80, 136 A.3d 418(App. Div. 2016). Variance—Board grants area variance requested by one property co-owner contingent on partitioning of parcel - Other co-owner disputes variance grant, saying it cannot be contingent on partition and requires consent of all co-owners Citation: Marks v. Aurora Bd. of Zoning Appeals, 2016-Ohio-5183, 2016 WL 4080786(Ohio Ct.App. 11th Dist. Portage County 2016) OHIO (08/01/16)—This case addressed two issues: (1) whether a zoning board of appeals could properly grant a requested variance, conditional upon the grant of a pending application for partitioning of the property; and (2) whether a cotenant of property owned by tenancy-in-common can seek an area variance without the approval of the other cotenants. The Background/Facts: When their parents died, Douglas, James, and Charles Marks became owners as tenants-in-common of a 25-acre parcel of land in a residential zoning district in Aurora, Ohio (the "City"). (As tenants- in-common each co-owner owns a separate and undivided interest in the same real property and has an equal right to the possession and use of the property.) 4 ©2016 Thomson Reuters