Time of Application Rule Protects Against Zoning Changes Only if an Application for Development Complies with All Ordinance Submission Requirements, New Jersey Appellate Court Rules

The New Jersey Appellate Division, in the published decision Dunbar Homes, Inc. v. The Zoning Board of Adjustment of the Township of Franklin, et al., recently declared what materials a developer must submit to a municipal land use board in order to constitute an “application for development” which triggers the protections of the Municipal Land Use Law’s (“MLUL”) “time of application” rule, N.J.S.A. 40:55D-10.5. Dunbar Homes establishes that an application is afforded the protections of the “time of application” rule from the time when an applicant submits an application form and all accompanying documents required by ordinance for approval. A formal finding that an application is “complete” by the municipality is not required. Thus, Dunbar Homes requires that the application essentially must be complete, even though that need has not yet been officially determined.

The MLUL’s “time of application” rule provides that the ordinances and regulations in effect “on the date of submission of an application for development” govern review of that application. This reverses the longstanding “time of decision” rule whereby municipalities could change the zoning regulations at any time prior to the approval of an application for development, even where the change was enacted during a public hearing process specifically for the purpose of derailing a pending application. Under the “time of application” rule, the date upon which “an application for development” was submitted for review is key to determining what ordinances apply to it if the relevant municipal ordinances change.

In Dunbar Homes, plaintiff filed an application seeking a conditional use variance pursuant to N.J.S.A. 40:55D-70(d)(3) to construct garden apartments. A conditional use variance was required because the applicant could not meet the minimum lot size requirement. Plaintiff’s initial submission was missing documents explicitly required by the municipality’s ordinance that sets forth the application requirements for such a project (the “Application Ordinance”). The day after submission of the application, the Township adopted an ordinance (which had been previously introduced) which deleted garden apartments as a conditional use and rendered them a non-permitted use in plaintiff’s zone (the “New Ordinance”). The Township’s Zoning Officer determined that (i) plaintiff’s application was not complete, and (ii) pursuant to the New Ordinance, plaintiff’s project no longer required merely a conditional use variance, but a d(1) use variance, governed by the more stringent standard set forth in N.J.S.A. 40:55D-70(d)(1). Plaintiff appealed the Zoning Officer’s determination to the Zoning Board of Adjustment, which affirmed the Zoning Officer’s determination.

Plaintiff filed a complaint, in lieu of prerogative writ, and the trial court reversed the Zoning Board’s determination. Finding that the application checklists had not been adopted by ordinance, the trial judge applied a standard whereby the “time of application” rule would apply when the materials submitted were sufficient to allow the board to commence a meaningful review. The trial judge concluded that the applicant’s submission was sufficient to meet this standard, and ruled that the “time of application” rule applied.

The Township appealed, arguing that the trial court erred by applying the “time of application” rule to plaintiff’s submission because it failed to include all documents required by the Application Ordinance, and erred in finding that the application checklists were not adopted by ordinance. The Appellate Division reversed the trial court’s decision, finding the trial court’s proposed standard “fatally imprecise.” First, in rejecting the Township’s position, the Appellate Division clarified that “[i]t is beyond cavil that a submission for ‘an application for development’ as used in N.J.S.A. 40:55D-10.5 need not be a ‘complete’ application,” as confirmed by both the plain language and the legislative intent behind the “time of application” rule. Turning specifically to what materials must be submitted in order to secure the protections of the “time of application” rule, the court declared that the definition of “application for development” in N.J.S.A. 40:55D-3 is the benchmark for this inquiry, and dictates that submission of “the application form and all accompanying documents required by ordinance for approval” – i.e., the “documents . . . [which] are specifically required by the” applicable Application Ordinance – are what must be submitted to trigger the “time of application” rule. The court stressed that a municipal zoning officer’s determination that a submission falls short of an “application for development,” as defined in N.J.S.A. 40:55D-3, remains subject to review under the arbitrary, capricious, and unreasonable standard. Here, because Plaintiff’s application omitted documents explicitly required by the Application Ordinance, the Zoning Board’s determination that the “time of application” rule did not apply to the application was not arbitrary, capricious, or unreasonable. Finally, the Appellate Division did not find it necessary to decide whether the application checklists were adopted by ordinance.

The “time of application” rule seeks to enable applicants to rely on development regulations which are effective at the time of their submission without fear that later zoning amendments may hinder or complicate their proposals. Dunbar Homes confirms the importance of analyzing a municipality’s relevant ordinances and checklists prior to submitting an application for development, and submitting a thorough and “complete” application the first time around even though it need not actually have been deemed complete.

Howard D. Geneslaw is a Director in the Gibbons Real Property & Environmental Department.
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