Capitol Report

Capitol Report

July 16, 2018

This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters.

Supreme Court cites uniformity for ruling substantial completeness not protected by time of application rule

The New Jersey Supreme Court affirmed the Appellate Division in holding that an application that lacks the documents required by ordinance for a complete submission cannot benefit from the time of application rule. The decision in Dunbar Homes, Inc. v. Zoning Board of Adjustment of Franklin Township, Docket A-89-16, decided on June 20, denied Dunbar Homes conditional approval of its application because its initial application was deemed incomplete. The New Jersey State Bar Association (NJSBA) urged the Supreme Court to reverse the Appellate Division, signaling a concern that its decision could operate to prevent many applications from receiving the time of application rule protection because of a self-contradictory result that an application need not be complete, but that all application forms and accompanying documents be submitted before a completeness determination is rendered. The NJSBA appeared as amicus curiae in support of Dunbar Homes. Howard D. Geneslaw, Michael D. DeLoreto and Cameron W. MacLeod drafted the brief, and Geneslaw argued the matter on behalf of the association.

Dunbar Homes is an existing apartment complex that sought to build an additional 55 garden apartments in the general business (GB) zone. At the time, the development was a conditional use that would require a “conditional use special reasons” variance pursuant to N.J.S.A. 40:55D-70(d)(3). The township held a public hearing for an ordinance to eliminate garden apartments as a permitted conditional use in the GB zone, and 18 days before it adopted the new ordinance advised Dunbar of the potential change. Dunbar submitted an application to the planning board for site plan approval and a (d)(3) variance one day before the new ordinance was adopted. Two days after the ordinance became effective, Dunbar was told the application was incomplete and it would need to apply for a “restricted use special reasons” variance under a more restrictive statute—N.J.S.A. 40:55D-70(d)(1)—which was less likely to be approved. Dunbar appealed the township’s decision, arguing that its application was complete upon submission and, therefore, protected by the time of application rule, even though Dunbar conceded it lacked items required by the ordinance for site plan or variance approval. Dunbar argued that despite the deficiencies, its application was sufficient. The board denied the appeal, but the trial court reversed the decision, finding the board’s decision arbitrary and capricious or unreasonable. The Appellate Division reversed.

Citing to the legislative intent of the statute and the plain language of the Municipal Land Use Law (MLUL), the Supreme Court held that the MLUL is a comprehensive statute that allows municipalities to adopt ordinances to regulate land development using uniform and efficient procedures. The time of application rule addressed the Legislature’s concern that municipalities would respond to an application for development by changing the law to frustrate the application.

“Determinations as to the precise contents of an ‘application for development’ are thus left to municipalities, in accordance with the Legislature’s general exercise of its ‘constitutional authority’ to delegate to municipalities the ‘police power’ to enact ordinances governing ‘land use’ through the passage of the MLUL,” said the Supreme Court in its unanimous opinion, written by Justice Lee Solomon.


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