Dunbar Homes, Inc. v. Zoning Board of Adjustment of Franklin Township
(A-89-16) (079076)

Argued April 9, 2018 -- Decided June 20, 2018

SOLOMON, J., writing for the Court.

N.J.S.A. 40:55D-10.5, a section of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -136, provides that “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.” That rule is known as the Time of Application Rule (TOA Rule), and this appeal turns on whether an incomplete application triggers the TOA Rule’s protections.

Plaintiff Dunbar Homes, Inc., (Dunbar) owns a 276-unit garden apartment complex in the General Business Zone (GB-Zone) of Franklin Township (Township). Dunbar sought approval to develop an additional fifty-five garden apartments, which at that time were a permitted conditional use in the GB-Zone. As such, construction of the additional apartments required submission of an application for site plan approval and a “conditional use special reasons” variance pursuant to N.J.S.A. 40:55D-70(d)(3) ((d)(3) variance).

On May 28, 2013, the Township introduced and scheduled a public hearing for an ordinance that eliminated garden apartments as a permitted conditional use in the GB-Zone. The Township adopted the new ordinance on July 16, 2013, and it became effective on August 5, 2013. On June 28, 2013, eighteen days before it adopted its new ordinance, the Township advised Dunbar of the potential GB-Zone change. The day before the Township adopted its new ordinance, Dunbar submitted an application to the Planning Board for site plan approval and a (d)(3) variance. On August 7, 2013, two days after the Township’s new zoning ordinance eliminated garden apartments as a conditional use in the GB-Zone, a Township zoning officer emailed Dunbar to indicate that its application was incomplete under the Township’s Zoning and Subdivision Ordinance (Ordinance). The zoning officer provided a list of items “needed for completeness” and instructed Dunbar it would need to apply for a “restricted use special reasons” variance under N.J.S.A. 40:55D-70(d)(1) ((d)(1) variance) instead of a (d)(3) variance because “garden apartments are not permitted in the GB Zone.” Since a (d)(3) variance need not meet the stringent standards required for a (d)(1) variance, approval of a (d)(1) variance was less likely.

Dunbar appealed the Township’s decision to the Zoning Board of Adjustment (Board), arguing that the application was “complete” upon submission and was therefore protected by the TOA Rule. Dunbar presented the testimony of two experts. A professional planner conceded that Dunbar’s application lacked items required by the Ordinance for site plan or variance approval but opined that despite those deficiencies Dunbar’s application was sufficient. Second, an expert in New Jersey land use law stated that a completeness requirement would frustrate the purpose of the MLUL. The Board denied the appeal.

Dunbar filed a complaint, asserting that the Board’s decision was arbitrary and capricious or unreasonable. The trial court agreed and reversed the Board, concluding that “there was enough submitted to functionally begin a review” of Dunbar’s application. Thus, the court found that Dunbar was protected by the TOA Rule and could therefore pursue a variance for the additional apartments under N.J.S.A. 40:55D-70(d)(3). The Township appealed the trial court’s decision and the Appellate Division reversed. 448 N.J. Super. 583 (App. Div. 2017). The Court granted certification. 233 N.J. 127 (2017).

HELD: The plain language of the MLUL defines an “application for development” as “the application form and all accompanying documents required by ordinance.” N.J.S.A. 40:55D3. 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...

1. The MLUL is a comprehensive statute that allows municipalities to adopt ordinances to regulate land development in a manner which will promote the public health, safety, morals and general welfare using uniform and efficient procedures. The TOA Rule, which took effect in May 2011, replaced the former “time of decision rule,” which required that zoning boards and
reviewing courts apply the statute in effect at the time of the land-use application decision. The time of decision rule allowed municipalities to change land-use ordinances after an application
had been filed, even in direct response to the application. The Legislature acknowledged that the time of decision rule had produced “inequitable results.” A. Housing & Local Gov’t Comm. Statement to A. 437 (2010). In order to “effectively prohibit[] municipalities from responding to an application for development by changing the law to frustrate that application,” ibid., the Legislature adopted the TOA Rule, N.J.S.A. 40:55D-10.5. The terms used in the TOA Rule are to be construed in accordance with any definitions set forth in the MLUL. Thus, 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.” N.J.S.A. 40:55D-3 (emphasis added). (pp. 16-18)

2. Determinations as to the precise contents of an application for development are thus left to municipalities. Pursuant to its delegated power, the Township incorporated into its Ordinance a
detailed checklist and description of each application requirement for agency review. For the purposes of the legal question posed by Dunbar, it is sufficient that a checklist of application
components are provided by the Ordinance. That list is anticipated in, and incorporated by, the MLUL definition of “application for development” in N.J.S.A. 40:55D-3 and, by extension, the
TOA Rule of N.J.S.A. 40:55D-10.5. Thus, to benefit from the protections of the TOA Rule, an application for development in Franklin Township must contain the required information and
documents listed in the Ordinance. That clear, easily applied, and objective standard advances the MLUL’s goal of statewide consistency and uniformity in land use decisions. (pp. 18-20)

3. The Court notes some important practical limits to Board determinations based on an application’s failure to include all required materials. First, an application is not “incomplete” simply because a municipality requires “correction of any information found to be in error and submission of additional information.” N.J.S.A. 40:55D-10.3. Further, in the event information required by ordinance is not pertinent, the applicant may request a waiver. N.J.S.A. 40:55D-10.3. 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. If the Board denies the waiver, its decision will be subject to review. (p. 20)

4. Although the TOA Rule does not use the word “complete,” it explicitly cross-references the local ordinance provisions that list application requirements. The MLUL’s “completeness provision,” N.J.S.A. 40:55D-10.3, has no bearing on whether an application receives the protection of the TOA Rule. (p. 21)

5. The Township’s relevant Ordinance provisions list the information and materials required for site plan and variance applications. Dunbar argues that the Township has conflicting application requirements because, in addition to the Ordinance requirements for site plan and variance applications, it lists requirements for a bifurcated submission. It is undisputed that, whether Dunbar submitted a single application for site plan approval with a use variance or separate applications for site plan approval and for a use variance, Dunbar failed to include materials required by the Ordinance. It is inconceivable that Dunbar’s confusion about which Ordinance provision applied resulted in its failure to comply with either. The Township’s zoning officer properly determined that Dunbar’s application did not include “all accompanying documents required by ordinance” and was, therefore, “incomplete.” Because the application was incomplete and no waiver was sought, Dunbar’s application could not benefit from the TOA Rule. Rather, Dunbar’s application was properly subjected to the (d)(1) variance requirement. Hence, the decision of the Board was not arbitrary and capricious or unreasonable, and the judgment of the Appellate Division is affirmed. (pp. 21-24)



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