Zoning Permits in New Jersey: New Law Requires Decision Within 10 Business Days

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In-Sites

January 14, 2002

Time Limit Set

A new law approved in April requires that the “administrative officer” grant or deny a zoning permit within 10 business days from the receipt of a permit request. If the administrative officer fails to do so within the required time period, “the failure shall be deemed to be an approval of the application for a zoning permit.” The law, which is designated as Chapter 49 of the Laws of 2001 and will be codified in the Municipal Land Use Law (“MLUL”) at N.J.S.A. 40:55D-18, took effect on July 3, 2001.

Legislative History

This bill had been pending in the Legislature for some time. In its original form, action on zoning permit applications would have been required within 10 calendar days. However, to address objections from municipalities, the bill was revised to allow 10 business days for action on a zoning permit application. Before adoption of this law, the MLUL set forth no specific time period within which a zoning permit application had to be decided, nor was a default approval available in the case of a failure to act. In fact, it is relatively common for zoning officers to simply ignore written requests confirming that a particular use is permitted.

When and By Whom Zoning Permits Are Issued

The MLUL, in N.J.S.A. 40:55D-7, defines a “zoning permit” as “a document signed by the administrative officer (1) which is required by ordinance as a condition precedent to the commencement of a use or the erection, construction, reconstruction, alteration, conversion or installation of a structure or building and (2) which acknowledges that such use, structure or building complies with the provisions of the municipal zoning ordinance or variance therefrom duly granted by a municipal agency.” In practice, however, many municipal zoning ordinances simply do not provide any procedure for the issuance of zoning permits.

Potential Effects of New Law

Although this law promises to benefit developers in some communities where the municipal zoning ordinance spells out a procedure for obtaining a zoning permit and the officer charged with reviewing that application unreasonably delays a decision, its broader application may be somewhat limited. First, as noted, many municipalities do not have a procedure for obtaining a zoning permit or simply do not issue such permits. In those municipalities, it is questionable whether the statutory amendment can require municipal issuance of a permit that the MLUL authorizes but which the municipality has not elected to implement through adoption of an appropriate ordinance. Consequently, in municipalities that do not issue zoning permits, the new law may have no effect at all.

The other reason why the new law may be of limited impact relates to use of the term “administrative officer.” That term is defined by the MLUL, in N.J.S.A. 40:55D-3, as “the clerk of the municipality unless a different municipal official or officials, are designated by ordinance or statute.” The duties of the “administrative officer” under the MLUL arise most commonly in connection with the preparation and certification of property owner lists for purposes of public notice. As a result, the vast majority of zoning and land use procedures ordinances designate either the tax collector or tax assessor as the “administrative officer.” Pursuant to the statute, if the municipal ordinance does not specify a particular individual as the “administrative officer”, the duties of that position fall to the municipal clerk. Thus, based on the language used in the definition of “zoning permit” and in the new law, the obligation of the “administrative officer” to issue a zoning permit within 10 business days will technically, in many cases, fall to the tax assessor, tax collector or municipal clerk. Clearly, approval or denial of such permits is within the province of the zoning officer, whereas these other officials often have no background or experience with zoning matters. These officials are likely to decline to issue a permit without having some experience in or comfort level with zoning administration.

In summary, the new law promises to aid developers in dealing with recalcitrant zoning officers in municipalities that have an established procedure for obtaining zoning permits. Municipalities would be well advised, however, to review their ordinances to see how the term “administrative officer” is defined and to consider designating different officials for different responsibilities (e.g., the tax collector or tax assessor for the preparation of certified lists of property owners, and the zoning officer for action on applications for zoning permits).