On Monday, April 9, 2018, Howard D. Geneslaw, a Director in the Gibbons Real Property Department, argued before the Supreme Court of New Jersey on behalf of the New Jersey State Bar Association (“NJSBA”) as an amicus curiae in the matter of Dunbar Homes, Inc. v. Zoning Board of Adjustment of the Township of Franklin. The NJSBA was one of several amici involved in this case of first impression on the key question of when a submission to a municipal planning board is considered an “application for development” for purposes of being afforded protection under the “time of application” rule.
The “time of application” rule provides that the zoning regulations which govern the review of an application for development are those in effect at the time it is submitted. The issue to be decided by the New Jersey Supreme Court centers on what constitutes submission of an application for development which allows the applicant to invoke the protection of the “time of application” rule. The Appellate Division, in a reported decision, ruled that protection is not available until an applicant submits all documents specified in the municipality’s application checklist adopted by ordinance, although the application need not have been deemed complete for protection to vest, but did not address what occurs when the checklist is unclear, overreaching, or contradicted by ordinance. The developer, Dunbar Homes, along with amici NJSBA, New Jersey Builders Association, NAIOP New Jersey Chapter, and the International Council of Shopping Centers (“ICSC”) sought reversal of the Appellate Division’s decision, on the grounds that it is inconsistent with legislative intent as well as for other reasons.
Mr. Geneslaw, along with Gibbons attorneys Cameron W. MacLeod of the Gibbons Real Property Department and Michael D. DeLoreto of the Gibbons Government & Regulatory Affairs Department, authored the brief on behalf of the NJSBA. A copy of the brief submitted on behalf of the NJSBA is available here, and we will share the results of the decision when the Court releases its opinion.