In Dunbar Homes, Inc. v. Zoning Board of Adjustment of Franklin Twp., the Supreme Court of New Jersey (MLUL) clarified the Time of Application Rule. It held that an application for development is only complete when all required documents are submitted for review, including all documents mandated under a municipal ordinance.
Time of Application Rule
N.J.S.A. 40:55D-10.5, a section of the Municipal Land Use Law (MLUL), provides:
Notwithstanding any provision of law to the contrary, those development regulations which are in effect on the date of submission of an application for development shall govern the review of that application for development and any decision made with regard to that application for development. Any provisions of an ordinance, except those relating to health and public safety, that are adopted subsequent to the date of submission of an application for development, shall not be applicable to that application for development.
The rule, known as the Time of Application Rule (TOA Rule), replaced the prior “time of decision” rule under which the zoning regulations in effect at the time the planning board or zoning board decided the application were applied. The time of application rule was enacted to address “situations in which a developer would spend time and money pursuing an application, only to have a municipality change the zoning to the developer’s detriment while the application was pending.”
Facts of the Case
Plaintiff Dunbar Homes, Inc. (Dunbar) owns an existing garden apartment complex with 276 units in the Township’s General Business (GB) zone. Dunbar also owns 6.93 acres adjacent to this complex and planned to seek approval for fifty-five additional apartments on that property. Without any change in the ordinance, Dunbar was required to seek a conditional use variance pursuant to N.J.S.A. 40:55D-70(d)(3) because the size of the property was less than the minimum ten acres required for garden apartments as a conditional use in that zone.
On July 16, 2013, the Township amended its ordinance to eliminate garden apartments as a conditional use in that zone. On the day before the amendment was adopted, Dunbar filed a submission with the Planning Board seeking site plan approval and a (d)(3) conditional use variance for its proposed garden apartment project in the GB zone.
Defendants Township of Franklin and the Zoning Board of Adjustment (collectively, the Township) maintain that the time of application statute does not apply until the application for development is complete. Conversely, plaintiff Dunbar Homes, Inc. (Dunbar) argues “the submission of a substantial, bona-fide application which does not constitute a sham, and one which gives the Township sufficient notice of the application and an understanding of the development being proposed by the applicant, is sufficient” for the protection of the time of application statute.
The Appellate Division held that, although the submission need not be “deemed complete” pursuant to N.J.S.A. 40:55D-10.3, the plain language of relevant provisions of the MLUL requires a submission to include the “application form and all accompanying documents required by ordinance for approval” for the time of application rule to apply.
NJ Supreme Court’s Decision
The Supreme Court of New Jersey unanimously affirmed. “Because Dunbar’s application lacked many of the documents required by the Ordinance, the application was not complete upon submission and does not benefit from the TOA Rule,” the court held.
In reaching its decision, the New Jersey Supreme Court emphasized that the terms used in the TOA Rule must be construed in accordance with other definitions set forth in the MLUL. Accordingly, it concluded that the term “application for development” must be interpreted to mean “the application form and all accompanying documents required by ordinance for approval of a subdivision plat, site plan, planned development, cluster development, conditional use, zoning variance or direction of the issuance of a permit.”
The court further held that “[d]eterminations as to the precise contents of an ‘application for development’ are thus left to municipalities, in accordance with the Legislature’s general exercise of its ‘constitutional authority to delegate to municipalities the ‘police power’ to enact ordinances governing’ land use ‘through the passage of the [MLUL].’” In making those determinations, the court held that the zoning officer should compare the contents of a submission to the requirements of the municipal ordinance. As the court explained, “That clear, easily applied, and objective standard advances the MLUL’s goal of statewide consistency and uniformity in land use decisions.”
While the New Jersey Supreme Court rejected the trial court’s “meaningful review” standard, it did highlight some important practical limits to Board determinations based on an application’s failure to include all required materials. Notably, an application is not “incomplete” simply because a municipality requires “correction of any information found to be in error and submission of additional information.
In addition, in the event information required by ordinance is not pertinent, the applicant may request a waiver. The applicant’s submission will provisionally trigger the TOA Rule if a waiver request for one or more items accompanies all other required materials. If the Board grants the waiver, then the application will be deemed complete. Meanwhile, if the Board denies the waiver, its decision will be subject to review.
The decision inDunbar Homes, Inc. v. Zoning Board of Adjustment of Franklin Twp. is clearly a win for New Jersey municipalities. Under the court’s interpretation of the time of application rule, local officials will generally control whether an application may benefit from the TOA Rule.
For more information about the New Jersey Supreme Court’s decision or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.