The Appellate Division has recently issued a decision clarifying the applicability of the time of application rule. Effective May 5, 2011 the New Jersey Legislature enacted a change to the Municipal Land Use Law (“MLUL”) that provided the ordinances that would be applied to a development application are those that were in existence at the time a development application is filed. This was a significant change from the prior law under which the development application was subject to any changes in the applicable ordinances that was enacted up until the time when the local board made a decision with respect to the application. Known as the “time of decision” rule, this principle had great potential to work hardship and injustice upon an applicant. Essentially, an applicant could expend significant time and money pursuing a development application, including engineering, planning and legal expenses and numerous appearances before the reviewing board, only to have the rules of the game changed at the last instant.
In order to provide some predictability to applicants and ensure that the application review process was fair, the Legislature provided that the ordinances in effect “on the date of submission of an application for development” govern its review. N.J.S.A. 40:55D-10.5. Naturally, debate emerged about what the constitutes the “submission of an application.” This issue was resolved by the Appellate Division on Dunbar Homes, Inc. v. The Zoning Board of Adjustment of the Twp. of Franklin, 2017 N.J. Super. LEXIS 18.
In Dunbar the applicant had submitted an application to develop a 6.93 acre property with 55 garden apartment units. The applicant submitted its application one day before the existing ordinance was amended to delete garden apartments as a conditionally permitted use in the applicable zoning district. The zoning officer determined that the application submitted was deficient in that it did not contain several documents required to be submitted as a part of the application, including a copy of a submittal letter to the Department of Transportation. As a result it was determined that the application could not proceed as a d(3) variance application for a conditional use variance, but had to instead proceed as an application for a d(1) variance for a non-permitted use. The Board’s decision was founded on the premise that to obtain the protection of the time of application rule the application submitted must be a “complete” application under the MLUL.
The applicant appealed this decision. The Appellate Division examined the MLUL and concluded that an applicant was not required to submit a “complete” application to obtain the protection of the time of application rule. The court explained that the time of application rule did not reference a “complete” application and that the use of the term “complete” application used in connection with beginning the clock on the time allowed for municipal action on a development application was not applicable in the context of determining the date of submission of an application for purposes of applying the time of application rule.
Unfortunately for the applicant, the court found that merely submitting an application was not sufficient as an applicant could submit a sham application to obtain the time of application protection. The court ruled that the protection of the time of application rule only applies when the application form required by the municipal ordinance is submitted together with all other documents specifically required under the ordinance to be submitted as part of the application. Since the applicant in Dunbar had not submitted all of the documents required as part of the application by the ordinance, the court found that the applicant was not entitled to the protection afforded by the time of application rule. Thus, the Appellate Division had made it clear that an applicant must strictly comply with the applicable ordinance and submit all documents required by that ordinance with the application in order to secure the protection of the time of application rule.