“Time of Application” Rule for Development Kicks in When All Documents Required by Ordinance Are Submitted

Dunbar Homes, Inc. v. Franklin Tp. Bd. of Adj., 233 N.J. 546 (2018).  In a development application under the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. (“MLUL”), the law governing the application is determined as of “the date of submission of [the] application for development.”  In Dunbar Homes, Inc. v. Franklin Tp. Bd. of Adj., 448 N.J. Super. 583 (App. Div. 2017), discussed here, the Appellate Division ruled that an application need not be “complete” in order to trigger this “time of application [TOA] rule,” but need only include all papers required by ordinance for the relief being sought.  There, the municipality sought to apply an amended zoning ordinance to Dunbar’s application.  Dunbar opposed that, seeking instead application of a prior ordinance.  But Dunbar had not supplied a number of required items before the ordinance was amended.  Accordingly, the Appellate Division’s ruling resulted in a defeat for Dunbar.

Dunbar sought and was granted Supreme Court review.  Today, however, the Court unanimously affirmed the Appellate Division’s ruling in an opinion by Justice Solomon.

This was a pure legal issue, so the de novo standard of review governed.  Applying fundamental principles of statutory interpretation, and seeking to vindicate the Legislature’s intent, Justice Solomon concluded that the MLUL’s definition of “application for development,” N.J.S.A. 40:55D-3, which defines that term as “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,” plainly left the issue to municipalities to refine by ordinance.  “That clear, easily applied, and objective standard advances the MLUL’s goal of statewide consistency and uniformity in land use decisions.”

Dunbar had not supplied everything required by ordinance.  No waiver of any requirement was sought.  Accordingly, it was not arbitrary, capricious or unreasonable for the municipality to have determined that the amended zoning ordinance applied, since Dunbar’s submissions were insufficient to make applicable the prior ordinance.

Justice Solomon cautioned, however, that municipalities cannot overreach in enacting ordinances listing items required for development approvals.  “First, an application is not rendered ‘incomplete’ simply because a municipality requires ‘correction of any information found to be in error and submission of additional information not specified in the ordinance or any revisions in the accompanying documents.”  Second, if information required by ordinance is “not pertinent,” the applicant can seek a waiver of that requirement.  “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 relevant Board grants the waiver, the application will be deemed complete.  If the waiver request is denied, review of that decision is available under the “arbitrary and capricious” standard of review.

Today’s decision confirms the decision of the Appellate Division and provides welcome guidance to development applicants and Boards.  The availability of a waiver procedure gives development applicants some relief in circumstances where municipal ordinance requirements exceed what is reasonable and pertinent.