Protect Your Approvals: Duration and Extensions of Permits and Approvals Extended by the New Jersey Permit Extension Act
NAIOP NJ - The WeekEnder Brief
July 25, 2014
Andrew B. Robins
It seems unlikely that the NJ Legislature will further extend the “Extension Period” of the Permit Extension Act (the “Act”) beyond December 31 of this year. Therefore, property owners and developers with approvals which the Act extends need to determine when these approvals or their periods of protection expire, and what they can do to further extend these approvals. The Act automatically suspends the running of the period of an approval during the “Extension Period” of the Act, the time period beginning on January 1, 2007 and continuing through December 31, 2014, but this suspension will not extend an approval for more than six months after December 31, 2014. Nevertheless, the Act will not shorten the duration of any approval which it would have had in the absence of the Act. Moreover, the Act does not prohibit a government agency from granting any extensions of an approval which are otherwise provided for by law. Permits that qualify for extension under the Act are extended as follows:
- Eligible permits and approvals that would have expired between January 1, 2007 and June 30, 2007 are extended to the corresponding date in 2015 (i.e., a permit that would have expired on March 15, 2007 would now expire March 15, 2015).
- Eligible permits and approvals that would have expired between July 1, 2007 and December 31, 2014 are extended until June 30, 2015.
- Eligible permits and approvals that would have expired between January 1, 2015 and June 30, 2015 will expire June 30, 2015.
The best way to understand how the Act works with respect to land use approvals which municipal planning boards and zoning boards of adjustment granted pursuant to the Municipal Land Use Law, before or during the extension period, is by example. If a planning board granted a conventional, final site plan or subdivision approval to a developer on January 2, 2005, in the absence of the Act, the approval’s period of protection would have expired on January 2, 2007, and at that time, the developer would have been entitled to apply for three one-year extensions of the approval. With the Act, the two-year vesting period of the approval stopped running on January 1, 2007 and will start running again on January 1, 2015. Therefore, the approval will expire on January 2, 2015 and the developer will be entitled to seek three one-year extensions of the approval, provided it has not already obtained such extensions. The developer can seek the extensions because the Act does not prohibit a government agency from granting any extensions of an approval which are otherwise provided for by law.
Conversely, if the developer obtained the approval from the planning board or zoning board on January 2, 2009, the two-year vesting period of the approval never started to run and it will start to run on January 1, 2015. However, since the Act does not permit the vesting period of an approval extended by the Act to run for more than six months after December 31, 2014, the vesting period of the approval will expire on June 30, 2015. Notwithstanding this June 30, 2015 expiration, the developer will be able to seek three one-year extensions of the approval beyond June 30, 2015. Alternatively, if a developer obtained the approval on January 2, 2014, the vesting period of the approval will expire on January 2, 2016, not on June 30, 2014; because the Act will not shorten the duration which any approval would have had in the absence of the Act.
Finally, with an important exception, a developer can seek an extension of a planning or zoning board approval, which the Act extends, either before or after the time period of the approval expires. However, if a municipality has an ordinance (as many, but not all, municipalities have) limiting the duration of a “d” variance to one or two years, the developer must seek and obtain the extension of its “d” variance before this one- or two-year time period expires.
Permits and Approvals are subject to extension on an individual basis. If an activity or project is the subject of multiple permits, the extension of any one permit or approval is independent of the extension of any other permit or approval for the same activity or project.