Dunbar Homes, Inc. v. the Zoning Board of Adjustment

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3637-14T1
DUNBAR HOMES, INC.,
Plaintiff-Respondent/
Cross-Appellant, APPROVED FOR PUBLICATION
v. February 14, 2017
THE ZONING BOARD OF APPELLATE DIVISION
ADJUSTMENT OF THE
TOWNSHIP OF FRANKLIN,
Defendant-Respondent/
Cross-Appellant,
and
TOWNSHIP OF FRANKLIN,
Defendant-Appellant/
Cross-Respondent.
_______________________________________
Submitted June 7, 2016 – Decided February 14, 2017
Before Judges Espinosa, Rothstadt and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Docket No. L-
545-14.
Rainone Coughlin Minchello, LLC, attorneys for
appellant/cross-respondent (Louis N. Rainone,
of counsel; Jason D. Attwood, on the brief).
Kelso & Bradshaw, attorneys for respondent/
cross-appellant Zoning Board of Adjustment of
the Township of Franklin, join in the brief
of appellant/cross-respondent.
Hutt & Shimanowitz, P.C., attorneys for
respondent/cross-appellant Dunbar Homes, Inc.
(Ronald L. Shimanowitz, of counsel; Bryan D.
Plocker, on the brief).
The opinion of the court was delivered by
ESPINOSA, J.A.D.
The "time of application rule" embodied in N.J.S.A. 40:55D-
10.5 provides that regulations in effect "on the date of submission
of an application for development" govern the review of that
application. This marked a decisive shift from the "time of
decision rule" previously applied by our courts, in which a land
use decision was "based on the municipal ordinance as it existed
at the time the application or appeal was being decided." Jai Sai
Ram, LLC v. Planning/Zoning Bd. of the Borough of S. Toms River &
Wawa, Inc., 446 N.J. Super. 338, 343 (App. Div.), certif. denied,
____ N.J. ____ (2016). Under the time of decision rule, a
municipality was free to change its zoning ordinance during the
pendency of a site plan application "even if the ordinance is
amended in direct response to a particular application . . . as
long as the amendment is consistent with the Municipal Land Use
Law (MLUL)," N.J.S.A. 40:55D-1 to -163. Manalapan Realty, L.P.
v. Twp. Comm. of the Twp. of Manalapan, 140 N.J. 366, 378-79
(1995). The stated purpose for the enactment of N.J.S.A. 40:55D-
10.5 was to protect landowners and developers from the inequity
that occurred when application and approval efforts and expenses
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were rendered futile by subsequent changes to the ordinance. See
Jai Sai Ram, supra, 446 N.J. Super. at 343-44 (quoting Assemb.
437, 214th Leg., Req. Sess: (N.J. 2010) (Sponsor's Statement).
This appeal presents a question of first impression: when is
a submission to the planning board an "application for development"
that triggers the time of application rule. Defendants Township
of Franklin and the Zoning Board of Adjustment (collectively, the
Township) argue the time of application statute does not apply
until the application for development is complete. Conversely,
plaintiff Dunbar Homes, Inc. (Dunbar) argues "the submission of a
substantial, bona-fide application which does not constitute a
sham, and one which gives the Township sufficient notice of the
application and an understanding of the development being proposed
by the applicant, is sufficient" for the protection of the time
of application statute. We conclude that, although the submission
need not be "deemed complete" pursuant to N.J.S.A. 40:55D-10.3,
the plain language of relevant provisions of the MLUL requires a
submission to include the "application form and all accompanying
documents required by ordinance for approval" for the time of
application rule to apply. N.J.S.A. 40:55D-3.
Dunbar owns an existing garden apartment complex with 276
units in the Township's General Business (GB) zone. Dunbar also
owns 6.93 acres adjacent to this complex and planned to seek
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approval for fifty-five additional apartments on that property.
Without any change in the ordinance, Dunbar was required to seek
a conditional use variance pursuant to N.J.S.A. 40:55D-70(d)(3)
because the size of the property was less than the minimum ten
acres required for garden apartments as a conditional use in that
zone. What is at stake here is whether the (d)(3) variance still
applies or whether plaintiff must satisfy the conditions for a
(d)(1) variance, N.J.S.A. 40:55D-70(d)(1), as a result of a change
in the ordinance that eliminated garden apartments as a conditional
use in that zone.
I.
We begin with a review of the applicable statutory and
ordinance provisions.
N.J.S.A. 40:55D-10.5 establishes the time of application
rule:
Notwithstanding any provision of law to the
contrary, those development regulations which
are in effect on the date of submission of an
application for development shall govern the
review of that application for development and
any decision made with regard to that
application for development. Any provisions
of an ordinance, except those relating to
health and public safety, that are adopted
subsequent to the date of submission of an
application for development, shall not be
applicable to that application for
development.
[(Emphasis added).]
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The triggering event for this statute is the submission of
an application for development, which is defined in N.J.S.A.
40:55D-3 as:
the application form and all accompanying
documents required by ordinance for approval
of a . . . site plan . . . conditional use,
zoning variance or direction of the issuance
of a permit . . . .
[(Emphasis added).]
In pertinent part, the definition of "application for
development" in the Zoning and Subdivision Ordinance of the
Township of Franklin, (the Ordinance), Franklin Township, N.J.,
Code ch. 112, art. I, § 4 (2016); tracks the MLUL definition:
An application form completed as specified by
this chapter and the rules and regulations of
the board or agency before which the
application is to be presented and all
accompanying documents, information and fees
required by ordinance for approval of the
application for development, including where
applicable, but not limited to, a site
plan, . . . D Variance (use variance) . . .
[(Emphasis added).]
The Ordinance then proceeds to include language similar to a
different provision of the MLUL, N.J.S.A. 40:55D-10.3,1 to define
1
N.J.S.A. 40:55D-10.3 provides:
An application for development shall be
complete for purposes of commencing the
applicable time period for action by a
municipal agency, when so certified by the
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when an application is "complete" for an explicit purpose, i.e.,
when "the time period for action by a municipal agency" commences:
[T]he board or agency may require such
additional information not specified in this
chapter, or any revisions in the accompanying
documents, as are reasonably necessary to make
municipal agency or its authorized committee
or designee. In the event that the agency,
committee or designee does not certify the
application to be complete within 45 days of
the date of its submission, the application
shall be deemed complete upon the expiration
of the 45-day period for purposes of
commencing the applicable time period, unless:
a. the application lacks information indicated
on a checklist adopted by ordinance and
provided to the applicant; and b. the
municipal agency or its authorized committee
or designee has notified the applicant, in
writing, of the deficiencies in the
application within 45 days of submission of
the application. The applicant may request
that one or more of the submission
requirements be waived, in which event the
agency or its authorized committee shall grant
or deny the request within 45 days. Nothing
herein shall be construed as diminishing the
applicant's obligation to prove in the
application process that he is entitled to
approval of the application. The municipal
agency may subsequently require correction of
any information found to be in error and
submission of additional information not
specified in the ordinance or any revisions
in the accompanying documents, as are
reasonably necessary to make an informed
decision as to whether the requirements
necessary for approval of the application for
development have been met. The application
shall not be deemed incomplete for lack of any
such additional information or any revisions
in the accompanying documents so required by
the municipal agency.
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an informed decision as to whether the
requirements necessary for approval of the
application for development have been met.
The application shall not be deemed incomplete
for lack of such additional information or any
revisions in the accompanying documents so
required by the municipal board or agency. An
application shall be certified as complete
immediately upon the meeting of all
requirements specified in the ordinance and
in the rules and regulations of the municipal
board or agency, and shall be deemed complete
as of the day it is so certified by the
administrative officer for purposes of the
commencement of the time period for action by
the municipal agency.
[Franklin Township, N.J., Code ch. 112, art.
I, § 4 (2016). (Emphasis added).]
The corresponding MLUL provision is unrelated to the time of
application statute. N.J.S.A. 40:55D-10.3 was enacted to require
a municipal agency "to determine the completeness of applications
and to pass upon the merits of the various requests made within
specific time periods." Allied Realty v. Upper Saddle River, 221
N.J. Super. 407, 417 (App. Div. 1987) (emphasis added), certif.
denied, 110 N.J. 304 (1988). Once the application is deemed
complete pursuant to this statute, the time period for action by
the municipal agency begins to run, and, if that period ends
without action taken, the application is subject to automatic
statutory approval. See, e.g., N.J.S.A. 40:55D-48(c) (automatic
statutory preliminary approval); N.J.S.A. 40:55D-73 (automatic
7
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statutory approval of application for development to the board of
adjustment).
II.
On May 28, 2013, the Township introduced Franklin Township,
N.J., Ordinance 4021-13, (July 16, 2013) to amend Schedule I of
the Ordinance, to delete "garden apartment developments" from
permitted conditional uses in the GB zone. The amending ordinance
was adopted on July 16, 2013 and became effective August 5, 2013.
On 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. The requirements
applicable to Dunbar's application for site plan approval are set
forth in § 112-192 of the Ordinance. Franklin Township, N.J.,
Code ch. 112, art. XXIII, § 192 (2016). Section 112-300 identifies
the "information and documents" required for an application for
any (d) variance. Franklin Township, N.J., Code ch. 112, art.
XXXVI, § 300 (2016). Schedule 7 to the Ordinance establishes the
schedule of fees for each type of application. Franklin Township,
N.J., Code ch. 112, schedule 7 (2013).
Dunbar's submission included:
1. Original and 20 copies of Application for
Site Plan Approval
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2. Original and 20 copies of Application for Use
Variance
3. Original and one copy of Site Plan Checklist
4. Original and one copy of Use Variance
Checklist
5. Check for $1,750.00 (Site Plan Application
Fee)
6. Check for $625.00 (Use Variance Application
Fee)
7. Check for $8,000 (Escrow Fee)
8. Twenty (20) sets of site plans
9. Twenty (20) sets of architectural plans
10. Three copies of Engineer's Report
11. Fifteen copies of Traffic Report
12. Fifteen copies of Environmental Impact
Statement
13. Three copies of Somerset County Application,
Checklist and transmittal letter dated July
15, 2013
14. Three copies of Somerset Union Soil
Conservation District Application and
transmittal letter dated July 15, 2013
15. Original and three copies of W-9 Form for
[Dunbar]
16. Twenty (20) copies of certification of No
Taxes Due
17. Twenty (20) copies of Disclosure of Ownership
for Dunbar
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18. Twenty (20) copies of D & R Canal Commission
Application and transmittal letter dated
July 15, 2013.
In an email dated August 7, 2013, 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. Three of the items
identified by Dominach were necessary to satisfy the requirements
established by § 112-300 of the Ordinance for an application for
any (d) variance: "[f]our additional copies of the site plan
application, use variance application, site plans set and
architectural set," "3 copies of the drainage calculations," and
"[c]opy of submittal letter to [Department of Transportation]."
Dominach also identified items required by § 112-192 of the
Ordinance for an application for site plan approval:
1. The key map must show zoning boundaries
2. The location map must show the zoning of all
properties within 200 ft of the subject
property
3. Copy of sealed survey of the subject property
4. Site plan must provide datum to which contour
elevations refer
5. Site plan must indicate anticipated domestic
water demand and amount of septic effluent
6. Site plan must indicate methods and placement
of solid waste disposal facilities and
screening thereof
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7. Site plan must show existing and proposed
topography.
Dominach also identified "W-9 form (filled out completely)" and
additional fees2 required by Schedule 7 of the Ordinance. Dominach
advised further that, pursuant to the newly adopted ordinance,
Dunbar was now required to seek a (d)(1) variance, N.J.S.A. 40:55D-
70(d)(1), and not a (d)(3) variance because garden apartments were
no longer permitted in the GB zone.
In its notice of appeal to the Zoning Board of Adjustment
(the Board), Dunbar did not contend Dominach had erred by
identifying items that were not required for the (d)(3) variance
and site plan approval it sought. Instead, Dunbar argued only
that because it submitted its application before the effective
date of the amendment to the ordinance, only a (d)(3) variance was
required.
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.
At the public hearing before the Board, the Township argued
that, pursuant to § 112-4 of the Ordinance, an application for
2
The additional fees required were identified as "$4,125 ($75
per dwelling unit) if applying for preliminary approval only" and
"$4,125 plus $750 (final fee) plus $2,200 ($40 per dwelling unit)"
if Dunbar was "applying for preliminary and final approval."
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development had to be "complete" for the time of application
statute to apply. Dunbar presented expert testimony from John
Chadwick, a professional planner, and Robert Washburn, a law
professor with expertise in land use law.
Chadwick opined that, although Dunbar's July 15 submission
failed to constitute a "complete" application for development
under the Township's interpretation of § 112-4 of the Ordinance,
it qualified as an application under the MLUL. Chadwick added
that the inclusion of completeness to the definition of
"application for development" in the Ordinance undermined the
purpose of the time of application rule.
Washburn testified that the Legislature made an "application
for development," and "not a complete application for
development," the trigger for protection under the statute. He
opined the time of application rule is "not subject to
interpretation or modification by ordinance." He further
explained that, due to the multiplicity of "extremely extensive
completeness checklist[s]" in various municipalities, a
completeness requirement would frustrate the purpose of the
statute. He concluded § 112-4's definition of "application for
development" was "invalid" because it differs from the MLUL
definition of application for development and appeared to require
a finding of completeness by the Township.
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The Board affirmed Dominach's decision by unanimous vote and
adopted a resolution memorializing its approval of Dominach's
determination that Dunbar's submission was not an application for
development until October 29, 2013. As a result, Dunbar was
required to obtain a (d)(1) use variance to comply with the
ordinance as amended, effective August 5, 2013.
In its resolution, the Board relied upon Rumson Estates, Inc.
v. Mayor & Council of Fair Haven, 177 N.J. 338 (2003), to support
its conclusion that the MLUL did not preclude the Township from
adopting a zoning ordinance that defined "application for
development" differently from the definition in the MLUL because
the MLUL definition was not a mandatory term. The Board stated
it was "bound to apply the definition of an application for
development" in the Ordinance, but that even under the MLUL
definition, N.J.S.A. 40:55D-3, "Dunbar did not submit the required
material until October 29, 2013."
Dunbar filed a complaint in lieu of prerogative writ against
the Board and the Township. Following oral argument, the trial
judge reversed the Board's resolution.
The trial judge found § 112-4 of the Ordinance did not require
completeness for a submission to qualify as an application for
development; that the Ordinance was consistent with the MLUL and
that "the Board improperly interpreted its own ordinance as
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requiring completeness." As a result, he concluded the Ordinance
was not "arbitrary, capricious and unreasonable, or . . . null and
void."
Despite his finding that a "complete application for
development" was not required for the time of application statute
to apply, the trial judge determined that the time of application
statute and N.J.S.A. 40:55D-10.3 should be read in tandem. The
judge reasoned that N.J.S.A. 40:55D-10.3 required the Township to
adopt an ordinance establishing checklists. He found the Township
had not done so and concluded some other means was needed to
determine if a submission was sufficiently complete to satisfy the
definition of an application for development. Recognizing the
need to exclude "sham applications" and "applications that are
half blank," the judge concluded the time of application rule
should apply if "the applicant provide[s] enough information . . .
so that a meaningful review of the application can commence . . .
so that at least the township can get . . . started on engaging a
meaningful review."
The court then reviewed each of the documents submitted by
Dunbar in July 2013 to determine their sufficiency and concluded
"there was enough submitted to functionally begin a review" of
Dunbar's submission on July 15, 2013. The judge entered an order
that reversed the Board's denial of Dunbar's "right to proceed
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under the prior conditional use provisions for Garden Apartments."
The Township's motion for reconsideration was denied.
The Township appeals from the trial court's reversal of the
Board's resolution. The Township argues the trial court erred in
applying the time of application rule to a submission that failed
to include all documents required by municipal ordinance. The
Township argues further that the trial court erred in imposing the
checklist requirements of N.J.S.A. 40:55D-10.3 upon the definition
of "application for development" and in concluding that the
Ordinance did not contain such a checklist. In its cross-appeal,
Dunbar argues the trial court's decision that the Board's action
was arbitrary, capricious or unreasonable should be affirmed; that
the time of application statute does not require an application
for development to be deemed complete; and that the Ordinance's
definition of "application for development" is invalid and ultra
vires because its effect is to eviscerate a mandatory provision
of the MLUL. We conclude the Board's decision that the time of
application statute was not triggered here was not arbitrary,
capricious or unreasonable, albeit for reasons different from
those relied upon by the Board.
III.
In reviewing a local zoning decision, we "determine whether
the Board followed statutory guidelines and properly exercised its
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discretion." CBS Outdoor, Inc. v. Borough of Lebanon Planning
Bd./Bd. of Adjustment, 414 N.J. Super. 563, 578 (App. Div. 2010).
The zoning board's determination will be set aside "only when it
is arbitrary, capricious or unreasonable," Kramer v. Bd. of
Adjustment, Sea Girt, 45 N.J. 268, 296 (1965), and will not be
disturbed in the absence of a "clear abuse of discretion." CBS,
supra, 414 N.J. Super. at 577 (quoting Kramer, supra, 45 N.J. at
296-97). The same standard of review applies to our review of a
trial court's decision on appeal from such a determination. See
D. Lobi Enters. v. Planning/Zoning Bd. of Borough of Sea Bright,
408 N.J. Super. 345, 360 (App. Div. 2009); N.Y. SMSA, L.P. v. Bd.
of Adjustment of Twp. of Weehawken, 370 N.J. Super. 319, 331 (App.
Div. 2004).
"Although a municipality's informal interpretation of an
ordinance is entitled to deference . . . the meaning of an
ordinance's language is a question of law that we review de novo."
Bubis v. Kassin, 184 N.J. 612, 627 (2005). Similarly, the trial
judge's determination as to the meaning of the ordinance is not
entitled to any deference in our analysis. Mountain Hill, L.L.C.
v. Zoning Bd. of Adjustment of Twp. of Middletown, 403 N.J. Super.
210, 234 (App. Div. 2008), certif. denied, 197 N.J. 475 (2009).
When interpreting a statute, the goal "is to ascertain and
effectuate the Legislature's intent." Cashin v. Bello, 223 N.J.
16A-3637-14T1
328, 335 (2015). When the plain language of a statute is clear
on its face, "the sole function of the courts is to enforce it
according to its terms." Ibid. (citation omitted). If the statute
"'is subject to varying plausible interpretations,' or when
literal interpretation of the statute would lead to a result that
is inherently absurd or at odds with either public policy or the
overarching statutory scheme of which it is a part," we "may
consider extrinsic sources, including 'legislative history,
committee reports, and contemporaneous construction.'" Id. at
335-36 (citation omitted).
IV.
The protection afforded by N.J.S.A. 40:55D-10.5 is triggered
by the "submission of an application for development." It is
beyond cavil that a submission for an "application for development"
as used in N.J.S.A. 40:55D-10.5 need not be a "complete"
application.
On its face, the statute does not require a "complete"
application, a fact confirmed by the MLUL's definition of
"application for development," N.J.S.A. 40:55D-3. Even if it were
necessary to explore extrinsic evidence to interpret this
language, the legislative history offers compelling evidence that
the Legislature considered and rejected requiring a complete
application for the time of application statute to apply.
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As originally proposed, N.J.S.A. 40:55D-10.5 stated:
Notwithstanding any provision of law to the
contrary, whenever an application for
development fully conforms with the
development regulations which are in effect
at the time that an application for
development is deemed complete, those
development regulations shall govern review of
that application."
[S. 2118, 211th Leg. (N.J. 2004) (emphasis
added).]
The proposed language in the 2005-06, 2008-09 and 2009-10
Legislative sessions removed "deemed complete," and instead used
language identical to the provision adopted in 2010. See S. 457,
212th Leg. (N.J. 2006); S. 58, 213th Leg. (N.J. 2008); S. 82,
214th Leg. (N.J. 2010).
This omission stands in contrast to other provisions of the
MLUL in which the Legislature elected to modify the term
"application for development" with "complete" and "deemed
complete." See e.g., N.J.S.A. 40:55D-10.3; N.J.S.A. 40:55D-73
(time period in which a Board of Adjustment must render a decision
begins to run with "the submission of a complete application for
development") (emphasis added); N.J.S.A. 40:55D-110 (applications
for development to the historic preservation commission will not
be transferred until "deemed complete") (emphasis added). This
presents an instance where "the Legislature expressly include[d]
a requirement in one subsection and exclude[d] that same
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requirement in other subsections of the same general statute," and
so, "complete" should not be implied in N.J.S.A. 40:55D-10.5. In
re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 492 (2004)
(citing Higgins v. Pascack Valley Hosp., 158 N.J. 404, 419 (1999)).
V.
Notwithstanding the clear import of the MLUL definition of
"application for development" in this context, the Township argues
that the MLUL definition is not mandatory and that the Ordinance
requires a "complete" application for development. We disagree
with each of these arguments.
A.
The authority of a public entity to plan and zone is a
delegation of the police power vested in the Legislature by the
New Jersey Constitution. Griepenburg v. Twp. of Ocean, 220 N.J.
239, 252 (2015) (citing N.J. Const. art. 4, § 6, ¶ 2). "The MLUL
was intended to simplify, expedite and standardize procedures for
approval by local boards, limit the potential for harassment of
applicants, and bring consistency, statewide uniformity, and
predictability to the approval process." N.Y. SMSA, supra, 382
N.J. Super. at 550; see also Rumson Estates, supra, 177 N.J. at
349 (describing the MLUL as "a comprehensive statute that allows
municipalities to adopt ordinances to regulate land
development . . . using uniform and efficient procedures").
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"Because the planning and zoning power stems from legislative
allowance, it must be exercised in strict conformity with the
delegating enactment -- the MLUL." Nuckel v. Borough of Little
Ferry Planning Bd., 208 N.J. 95, 101 (2011). See also Riggs v.
Twp. of Long Beach, 109 N.J. 601, 610 (1988) ("Municipalities do
not possess the inherent power to zone, and they possess that
power, which is an exercise of the police power, only insofar as
it is delegated to them by the Legislature.").
N.J.S.A. 40:55D-3 provides definitions that apply "[f]or the
purposes of this act, unless the context clearly indicates a
different meaning." "In other words, when a defined term is used
in the MLUL, it will have a specified meaning." Rumson Estates,
supra, 177 N.J. at 354.
The Township's reliance upon Rumson Estates to support its
argument that it may alter the definition of "application of
development" is misplaced. As to whether an MLUL definition set
forth in N.J.S.A. 40:55D-3 to -7, is mandatory, the Court stated,
"The term 'shall' indicates a 'mandatory requirement' and the term
'may' indicates a 'permissive action.'" Id. at 352. Thus, in
considering whether an ordinance that altered the MLUL definition
of "lot" and "floor area ratio" was valid, the Court found the
alteration authorized by the MLUL, citing N.J.S.A. 40:55D-65(b)
("A zoning ordinance may . . . specify floor area ratios and other
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ratios and regulatory techniques governing the intensity of land
use . . . .") (emphasis added). Id. at 351-52.
The interpretation of the Ordinance proposed by the Township
is not authorized by any "permissive" provision of the MLUL and
fails to advance any of the enumerated goals of the MLUL, N.J.S.A.
40:55D-2. See id. at 350 ("It is basic that every zoning ordinance
must advance one of those goals."). To the contrary, the potential
proliferation of disparate definitions of "application for
development" that differ from N.J.S.A. 40:55D-3 compromises the
ability of the MLUL to establish "uniform and efficient
procedures." Id. at 349.
We therefore hold that the MLUL definition for "application
for development," N.J.S.A. 40:55D-3, is mandatory in construing
the time of application rule.
B.
The Ordinance enjoys a presumption of validity. Rumson
Estates, supra, 177 N.J. at 350-51. Applying established rules
of statutory construction, Twp. of Pennsauken v. Schad, 160 N.J.
156, 170 (1999), we focus on the plain language of the statute and
use common sense "to effectuate the legislative purpose,"
Morristown Assocs. v. Grant Oil Co., 220 N.J. 360, 380 (2015); see
also In re J.S., 444 N.J. Super. 303, 308 (App. Div.), certif.
denied, 225 N.J. 339 (2016).
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Having determined the MLUL's definition of "application for
development" is a mandatory term, we apply common sense to our
interpretation of the Ordinance and conclude that any ambiguity
in the Ordinance is merely a function of the fact that the
Ordinance seeks to implement two unrelated provisions of the MLUL.
The first part of the Ordinance definition tracks the language
of the MLUL definition for application of development. The
Ordinance then incorporates language to define when an application
is complete "for purposes of the commencement of the time period
for action by the municipal agency." Franklin Township, N.J. Code
ch. 112, art. I, § 4 (2016). This language codifies the standard
established in N.J.S.A. 40:55D-10.3, a statute designed to
implement an entirely different legislative objective.
Stated simply, while N.J.S.A. 40:55D-10.5 protects an
applicant from adverse action taken by a municipal agency after
an application is submitted, N.J.S.A. 40:55D-10.3 protects an
applicant from the municipal agency's inaction after the
application is submitted. N.J.S.A. 40:55D-10.3 does so by defining
when the clock starts ticking for automatic approval provisions.
See Allied Realty, supra, 221 N.J. Super. at 418 ("The evil which
the automatic approval provisions were designed to remedy was
municipal inaction and inattention."); Fallone Prop., supra, 369
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N.J. Super. at 569 ("The purpose of these time limits is to
expedite decision making on land use applications.").3
N.J.S.A. 40:55D-10.3 explicitly limits the application of the
"complete" standard to this purpose, stating, "[a]n application
for development shall be complete for purposes of commencing the
applicable time period for action by a municipal agency . . . ."
The Ordinance similarly states an application "shall be . . .
complete . . . for purposes of the commencement of the time period
for action by the municipal agency." Franklin Townshp, N.J., Code
ch. 112, art I, § 4 (2016). The language and objective served by
the time of application statute plainly fall outside the purpose
for defining the start of a time period that ends in the automatic
approval of an application.
Although the language relating to the two MLUL provisions is
included in one section of the Ordinance, viewing the two portions
as separate rather than interdependent effectuates the underlying
purpose for each without impairing the ability of either to
implement its purpose. On the other hand, an interpretation that
3
The importance of requiring an application be certified as
complete or deemed complete under N.J.S.A. 40:55D-10.3 is evident.
Since "[a]n incomplete application is not entitled to any
consideration on the merits," the automatic approval of an arguably
incomplete application would do nothing to expedite decision-
making but would needlessly preclude the municipal agency from
performing its function. Eastampton Ctr. LLC v. Planning Bd. of
Twp. of Eastampton, 354 N.J. Super. 171, 195-96 (App. Div. 2002).
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the language regarding a "complete" application modified the
definition of "application for development" would render the
Ordinance invalid as contrary to a mandatory MLUL definition.
Because we are charged to discern an interpretation that is
consistent with validity if possible, Manalapan Realty, supra, 140
N.J. at 385, we conclude the two sections of the Ordinance are
properly viewed as separate provisions that do not modify each
other. See also Franklin Township, N.J. Code ch. 1, art. IV, §
16 (2016) ("[T]he holding of any section or part thereof to
be . . . void or ineffective for any cause shall not be deemed to
affect the validity . . . of any other sections or parts
thereof.").
C.
The remaining issue is what standard a submission must meet
to constitute an "application for development" protected by the
time of application statute.
The trial judge proposed a standard that would be satisfied
when the applicant provided enough materials to allow the municipal
agency to "commence" a meaningful review. He then reviewed each
of the twelve deficiencies identified by Dominach to determine
whether they would have substantively impacted Dominach's review
of the submission. The court held: (1) twenty copies of the survey
was sufficient to facilitate review; (2) the $10,000 fee was
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sufficient to commence review despite the significant additional
fees that could attach; (3) the incomplete W-9 did not "seem to
be of any great consequence"; (4) the application included
sufficient data and information regarding drainage to "begin
review of what drainage might be . . . even though it couldn't be
completed necessarily"; (5) the key map and location map were
"technical details" that really would not affect review of an
application; (6) the effluent and solid waste disposal information
although not demarcated on the site plan was set forth in the
engineering report; and (7) the failure to forward the letter to
the Department of Transportation would not "seriously interfere
with . . . beginning the review of an application." The trial
court held that despite the deficiencies in Dunbar's application,
Dominach was able to "functionally begin a review" on the date of
submission.
We decline to adopt this approach.
A fundamental principle of land use law is that municipal
authorities are granted "wide latitude in the exercise of the
discretion" in recognition of "their peculiar knowledge of local
conditions." Burbridge v. Mine Hill, 117 N.J. 376, 385 (1990)
(citation omitted). The role of a reviewing court is to determine
whether the exercise of that discretion was valid or "arbitrary,
capricious or unreasonable." C.B.S. Outdoor, supra, 414 N.J.
25A-3637-14T1
Super. at 577 (quoting Kramer, supra, 45 N.J. at 296). It is not
within the reviewing "court's mandate to substitute [its] judgment
for the proper exercise of the Board's discretion." Id. at 577-
78; see also Fallone Prop., supra, 369 N.J. Super. at 561 (citation
omitted) ("[A] reviewing court is not to 'suggest a decision that
may be better than the one made by the board of adjustment or
planning board, but to determine whether the board could reasonably
have reached its decision.'").
The task assumed by the trial judge here unjustifiably and
unnecessarily invaded the province of the municipal authority to
make the preliminary assessment as to whether the items required
by §§ 112-192 and -300 of the Ordinance for site plan approval and
a (d)(3) variance had been submitted in support of Dunbar's
application.4 Further, the standard he used for making that
determination, "enough information . . . so that at least the
township can get . . . started on engaging a meaningful review,"
is fatally imprecise. Such a standard has the capacity to
frustrate the Legislature's intent that the MLUL "bring
consistency, statewide uniformity, and predictability to the
approval process." N.Y. SMSA, supra, 382 N.J. Super. at 550.
4
In light of our decision that N.J.S.A. 40:55D-10.5 and N.J.S.A.
40:55D-10.3 are not to be read in tandem, we need not consider
whether §§ 112-192 and -300 of the Ordinance constitute
"checklists" under N.J.S.A. 40:55D-10.3.
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In our view, N.J.S.A. 40:55D-3 provides sufficient guidance
for the determination whether a submission should be afforded the
protection of the time of application statute:
the application form and all accompanying
documents required by ordinance for approval
of a . . . site plan . . . conditional use,
zoning variance or direction of the issuance
of a permit . . . .
[(Emphasis added).]
The documents that are necessary to satisfy this standard are
dictated by the nature of the application(s) sought and the
requirements for such application in effect at the time the
submission is made. For example, if an applicant sought a (d)(3)
variance as Dunbar did, the applicant was bound to submit all the
documents identified in the Ordinance that governed applications
for any (d) variance. Although the Ordinance reserved the right
of the board to require additional information, it is clear the
need for additional submissions would not prove fatal to the
submission as an "application for development." Even when an
application is required to be deemed complete for the purpose
identified in N.J.S.A. 40:55D-10.3, "[t]he application shall not
be deemed incomplete for lack of any such additional information
or any revisions in the accompanying documents so required by the
municipal agency." Ibid. The benchmark for determining whether
documents are required for the submission to constitute an
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application for development, N.J.S.A. 40:55D-3, is whether they
are specifically required by ordinance.
In the first instance, the responsible municipal official
determines whether the requirements of an ordinance have been
satisfied. This determination rests upon a quantitative rather
than a qualitative analysis. For example, in this case, documents
explicitly required by the Ordinance, such as a letter to the
Department of Transportation, and information similarly required,
such as "datum to which contour elevations refer" on the site plan
application, were missing from the application. Because any
requirement deemed unsatisfied must be specifically required by
ordinance, this affords applicants a measure of predictability and
precludes an adverse determination based upon frivolous
discrepancies.5 The municipal official's decision that the
5
See Cox & Koenig, N.J. Zoning & Land Use Administration, § 14-
1.1 at 292 (2016), providing examples of decisions that found
applications incomplete on frivolous grounds:
[A]pplications which were accompanied
by . . . a site plan or subdivision map as
required by the ordinance, would nevertheless
be found to be incomplete because the north
arrow was inadvertently omitted from the map,
because insufficient signature lines had been
provided or because the environmental impact
statement filed with the application was
deemed to be insufficient.
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submission falls short of an "application for development," as
defined in N.J.S.A. 40:55D-3, remains subject to review, using the
arbitrary, capricious or unreasonable standard.
Turning to the facts of this case, it is undisputed that
Dunbar's submission failed to include documents required by §§
112-192 and -300 of the Ordinance as well as a portion of the fees
that were required when it submitted its applications for site
plan approval and a (d)(3) variance. The determination that these
omissions constituted deficiencies required no subjective
evaluation of the contents of the documents submitted. It was,
therefore, not an abuse of discretion for Dominach to find the
application deficient.
Because we review judgments and not reasoning, Do-Wop Corp.
v. City of Rahway, 168 N.J. 191, 199 (2001), the fact that 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 is not fatal to finding its
conclusion should be affirmed. It is undisputed that Dunbar's
July submission did not include all the documents required by
ordinance at the time it was filed. The documents necessary to
satisfy the MLUL definition of "application for development" were
not submitted until after the amendment to the Ordinance became
effective. Therefore, the Board's conclusion that Dunbar was not
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entitled to the benefit of the time of application statute was not
arbitrary, capricious or unreasonable and the trial court erred
in reversing that determination.
Reversed.
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