The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1, et seq. has remained a constant for many years with few changes. One of the only recent additions to the statutory scheme has been the “Time of Application” rule, N.J.S.A. 40:55D-10.5, which was enacted in 2010. The Time of Application rule provides that the regulations in effect on the date of submission of an “application for development” govern the review of that application. The rule was a change from prior law, known as the “Time of Decision” rule, which allowed municipalities to make changes to ordinances and or to disallow permitted uses during the pendency of a hearing on an application in an effort to thwart the proposed development from coming to fruition.
Since the enactment of the Time of Application rule, there have been certain limited attempts to clarify precisely when and how it should be applied. In Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of Twp. of Franklin, 233 N.J. 546 (2018), the Court appeared to pull back on application of the rule, siding with municipalities, and finding that it was not just submission of any application, but essentially a complete application in order to prompt application of the rule and its protections. In essence, the Court held that in order for the rule to apply, an applicant had to submit an application with all the information and documents required in the municipality’s ordinance application checklist or submit a waiver request for any items missing or deemed extraneous. Id. at 562-563. While the Court’s decision in Dunbar recognized directly that there was no explicit use of the word “complete” in the Time of Application rule, it appeared to justify its determination through the creation of a seemingly objective standard that the Court claimed could be “easily applied”. Id. at 562-563. Construing the Time of Application rule in accordance with the terminology of the MLUL, the Court considered that the term “application for development” must be interpreted to mean the MLUL definition, “the application form and all accompanying documents required by ordinance for approval…”. Id. at 561. The Court further highlighted this conclusion as advancing the MLUL’s goals of consistency and uniformity in land use decisions. Id. at 562.
Moving towards a more developer-friendly view, in its recent decision in Hoboken for Responsible Cannabis, Inc. v. City of Hoboken Planning Board, 480 N.J. Super. 357 (App. Div. 2024), the Appellate Division took an interesting and deeper look at the Time of Application rule in terms of where it should apply.
In Hoboken, Blue Violets, LLC, appealed an order vacating a resolution by the City of Hoboken Planning Board, which had granted Blue Violets conditional use approval to operate an adult cannabis retail business. Id. at 362. By ordinance, Hoboken had established that, prior to and in conjunction with submitting to the Planning Board, a cannabis retailer shall obtain an endorsement from the Hoboken Cannabis Review Board (CRB). As such, Blue Violets submitted an application to the CRB that was subsequently deemed complete. Hoboken then amended its ordinance restricting cannabis retailer locations within proximate distances to schools. Id. at 365-366. Blue Violets obtained its CRB endorsement and, after the more restrictive ordinance went into effect, submitted its application to the Planning Board, which the Planning Board ultimately approved under the governance of the prior ordinance. Id. at 368. On appeal, the trial court vacated the Planning Board’s resolution of approval, holding that the Time of Application rule did not apply. It found that the CRB application was not an “application for development” under the MLUL because the CRB was not acting as a planning board under the ordinance. Id. 369-370.
On appeal, however, the Appellate Division focused heavily on the purposes behind the Time of Application rule, highlighting that the rule was implemented because the Time of Decision rule had allowed municipalities to essentially stop proposed developments by amending applicable zoning ordinances while development applications were being reviewed. Id. at 375-377. Enactment of the Time of Application rule was an effort to stop that practice and assist developers with the completion of the application process. The Appellate Division further explained that the Time of Application rule avoided the inequitable results of the Time of Decision rule, where an applicant expended considerable amounts of money during the application process, including for professional services and document production that became unusable after a new ordinance was amended. Id.
Applying these principles of fairness underlying the Time of Application rule, the court extended application of the rule to the CRB, holding that the rule’s protections were prompted when Blue Violets made its submission to the CRB because it considered the submission to be an “application for development” as defined by N.J.S.A. 40:55D-10.5. Id. at 378. The Appellate Division further explained that the CRB was created by Hoboken as a “separate arm of the Planning Board”, and therefore, the CRB had the responsibility to review cannabis applications for land use compliance.
Id. The CRB had deemed Blue Violets’ application complete prior to the effective date of the more stringent Hoboken ordinance, triggering the Time of Application rule, and the Planning Board correctly determined that Blue Violets’ application was not subject to the amendment. As such, the Appellate Division reversed the trial court’s order and reinstated the Planning Board’s approval. Id. at 379.
The Hoboken holding is a clear and unique extension of the Time of Application rule beyond planning or zoning board review. Indeed, while the MLUL defines “planning board” and “board of adjustment”, there is no MLUL definition or recognition of a CRB or even any similar-type agency. There is similarly no statutory reference to any other pre-planning board submission or review process.
Because of the extension of the rule in Hoboken, how and where the rule will be applied next will be interesting to see. Will development applicants before other similar municipal agencies be able to claim that these bodies are part of the land use compliance process? What other boards or entities will be determined to be a separate arm of a land use board, where the rule could also apply? Will New Jersey courts continue to expand the rule’s application, or will municipalities ultimately push back to ensure their newer ordinances and prohibitions are enforced to prevent real estate development? The next application for development submittal where an ordinance change is also at play may give us a hint.
The policy behind the Time of Application rule is fairness. It prevents an eleventh-hour change in the game. It allows developers to know the course of action when they make an application (so long as the application is in line with the ordinance requirements for submission of a complete application, per Dunbar). How, where and when the Time of Application rule continues to be and is ultimately applied, however, may keep changing. So, the rules of the game may continue to change, too.
Kathryn Razin is a senior associate at Wells, Jaworski & Liebman, LLP, in Paramus, NJ. Contact her at krazin@wellslaw.com.
Reprinted with permission from the April 14, 2025, edition of the New Jersey Law Journal © 2025 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com
