Time of Submission is Key for Land Use Applications

As you may recall from past Legal Updates, the New Jersey Legislature made a sweeping change to the application procedure dictated by the Municipal Land Use Law. Prior to 2011, applications submitted for development were subject to municipal ordinances in effect at the time the decision was rendered by the Board. This meant that pending applications were subject to any change in a municipality’s ordinances (even if they come after the application was pending), no matter the time and/or expense incurred by the applicant. A change in an ordinance even applied if it was adopted specifically to thwart the applicant’s pending application. This was known as the Time of Application Rule.

New Rule

In 2011, the Legislature enacted the Time of Submission Rule. It states that “those developmental regulations which are in effect on the date of submission . . . shall govern the review of the application for development and any decision made with regard to that “application for development.” Of course, with any new legislation comes different interpretations and new questions. The main question that has been argued is what constitutes an “application for development” for purposes of the Time of Submission Rule. Can any application, no matter the substance of that submission, satisfy the statute? Or does an application need to be deemed “complete” by the appropriate municipal authority?

This year the New Jersey Appellate Division opined on this question in Dunbar Homes, Inc. v. The Zoning Board of Adjustment of the Township of Franklin, et al. The plaintiff led an application seeking a conditional use variance to build garden apartments. The day after the application was submitted, the Township adopted an ordinance prohibiting garden apartments from the zoning district in question. In reviewing the plaintiff’s application, the Township Zoning Of cer determined that the application was not complete for failure to submit certain documents and information required by the Township’s ordinances. Since the application was not

complete, the Township Zoning Officer determined that the recently adopted ordinance controls. The plaintiff contended that because the application was submitted before the adoption of the ordinance, based on the Time of Submission Rule, the prior ordinance controlled. On appeal, the Board affirmed the Township Zoning Officer’s decision that the new ordinance controlled because the application was not complete.

“Meaningful Review”

On appeal, the trial court reversed the Board’s decision. The trial court ruled that an application was not required to be complete in order for the Time of Submission Rule to apply. Instead, the trial court ruled that an application only needed to provide enough information so that a “meaningful review of the application can commence”. The trial court determined that the plaintiff met this burden.

The Township appealed arguing that the trial court erred in applying the Time of Submission Rule where the plaintiff did not submit a “complete” application. The Appellate Court ruled that an “application for development”, as defined by the Municipal Land Use Law does not need to be complete in order for the Time of Submission Rule to apply. At the same time, the Appellate Division declined to adopt the “meaningful review” approach set forth by the trial court.

All Accompanying Documents

Instead, the Appellate Division found that, in accordance with the definition of “application for development” a submission must include “the application form and all accompanying documents required by ordinance”. As a result, the Appellate Division reversed the trial court’s decision because the plaintiff did not submit all of the documents required by the Township’s ordinances. Unfortunately, the Appellate Division did not provide much guidance regarding when a zoning officer can base their determination on the contents of those submitted documents, i.e.; “completeness”. Instead, the court simply stated that any determination by a zoning officer is subject to review based on the arbitrary, capricious and unreasonable standard.

Open Question

Obviously, this ruling has a major impact on future development applications. Unfortunately, there are questions which remain unanswered by this decision. Can an applicant not be protected under the Time of Submission Rule if it failed to provide a minor checklist requirement that has no bearing on the application? What happens if the applicant is requesting a waiver from certain checklist requirements? Most importantly, when are the contents of the submission materials adequate enough for an applicant to be protected by the Time of Submission Rule?

With that in mind, the Supreme Court will hear oral arguments to determine, “When is a submission to the planning board considered an “application for development” that triggers the “Time of Submission Rule,” which states that the regulations in effect on the date of submission of an application for development govern the review of that application?” The answer will have a profound impact on the manner in which applications are processed by developers.

Until this issue is decided by the Supreme Court, it is extremely important that any development application, especially those which are controversial, adhere to all submission requirements set forth in a municipality’s ordinances. If a waiver is being requested, it must be stated specifically in the application. Please feel free to follow up with our office if you are interested in discussing this ruling in greater detail. We will continue to monitor the case before the Supreme Court and you can check our website at www.wellslaw.com for an update.


Andrew S. Kohut is a Partner at Wells, Jaworski & Liebman who practices in the Land Use and Real Estate ar

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