Posted by: Patricia Salkin | March 7, 2017

NJ Appeals Court Reverses Holding that Submitted Materials for Site Plan Approval Constituted an Application for Development

On May 28, 2013, the Franklin Township introduced Franklin Township, N.J., Ordinance 4021–13, to amend Schedule I of the Ordinance, to delete “garden apartment developments” from permitted conditional uses in the GB zone. This amendment to the ordinance was adopted on July 16, 2013, and became effective August 5, 2013. The day before the amendment to the Ordinance 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. However, the day after the amendment to Schedule 1 to the Ordinance became effective, Senior Zoning Officer Vincent Dominach identified items “needed for completeness” of Dunbar’s application, and advised that pursuant to the newly adopted ordinance, Dunbar was required to seek a (d)(1) variance. After Dunbar submitted additional materials, Dominach advised the Board that Dunbar’s “submittal met the definition of ‘Application for Development’ ” and was “complete” as of October 29, 2013. The trial judge found the Ordinance did not require completeness for a submission to qualify as an application for development, and the Ordinance was consistent with the Municipal Land Use Law (MLUL).

As applicable to this case, the court noted that the protection from having to comply with the amendment, afforded by N.J.S.A. 40:55D–10.5, would be triggered by the “submission of an application for development.” On its face, the court found the statute did not require a “complete” application, and this interpretation was further supported by the MLUL’s definition of “application for development,” N.J.S.A. 40:55D–3. Furthermore, the interpretation of the Ordinance as requiring a complete application as proposed by the Township was not authorized by any “permissive” provision of the MLUL and failed to advance any of the enumerated goals of the MLUL.

Despite this, the court found that the fact the Board erred in concluding it was entitled to alter the MLUL’s definition of “application for development” and adopted a definition that required completeness was not fatal to finding its conclusion should be affirmed. Here, it was undisputed that Dunbar’s July submission did not include all the documents required by ordinance at the time it was filed. Instead, the documents necessary to satisfy the MLUL definition of “application for development” were not submitted until after the amendment to the Ordinance became effective. Accordingly, the court reversed, finding that the Board’s conclusion that Dunbar was not entitled to the benefit of the time of application statute was not arbitrary, capricious or unreasonable.

Dunbar Homes, Inc. v. Zoning Board of Adjustment of the Township of Franklin, 2017 WL 586506 (NJ App. 2/14/2017)

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