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Submit All Required Forms and Documents Required by Municipal Ordinance for Your Application to Trigger the Time of Application Rule

On June 20, 2018, the Supreme Court of New Jersey affirmed the Appellate Division decision in Dunbar Homes, Inc. v. Zoning Board of Adjustment of Franklin Township, which analyzes the “time of application” rule and reiterates that developers must submit all forms and all documents required by municipal ordinance in order to trigger the “time of application” rule.  Under the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -136, the “time of application” rule provides that “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…”  N.J.S.A. 40:55D-10.5.  The “time of application” rule was enacted in 2011 in order to prohibit municipalities from enacting ordinances in response to an application for development by a developer or property owner. 

In Dunbar Homes, Inc., the Supreme Court addressed the question as to “whether an application for development that does not include all required materials should be considered ‘an application for development’ for purposes of the [time of application] rule, N.J.S.A. 40:55D-10.5.”  The Supreme Court relied upon the definition of “application for development”, a term found in the “time of application” rule, which expressly is defined as “the application form and all accompanying documents required by ordinance for approval for a subdivision plat, site plan, planned development, cluster development, conditional use, zoning variance or direction of the issuance of a permit.”  N.J.S.A. 40:55D-3.  Thus, the exact contents of an “application for development” is left to the discretion of the municipality as enacted in the governing ordinance in accordance with its delegated municipal powers.  The Supreme Court noted that a checklist of application components provided in an ordinance is sufficient, as the list is anticipated in and provided in the definition of “application for development”, N.J.S.A. 40:55D-3.  Applying the requirement that developers must submit all forms and all documents required by ordinance should result in consistency statewide, with the hope that the zoning officer compare the contents of the submission with the requirements of the ordinance.

Nonetheless, the Supreme Court noted “important practical limitations” if the applicant does not include all required documents and information: (1) noting that an application is not rendered “incomplete” simply because the municipality requires “correction of any information found to be error and submission of additional information not specified in the ordinance or any revisions in the accompanying documents.” N.J.S.A. 40:55D-10.3 and (2) while the applicant can request a waiver from requirements of the ordinance as to information or documents it deems “not pertinent” or “extraneous”, if the request is timely submitted with the other required materials, the “time of the application” rule would “provisionally trigger’, if the board grants the waiver and the application is deemed complete.  However, the ultimate risk will be on the applicant if the board denies the waiver, its decision will be subject to further review.  Other practical limitations, such as in the case of bifurcated submission, may also present themselves in the near future.

The bottom line is that the only sure approach to triggering the protections of the “time of application” rule, is for property owners and developers to include all forms and documents required by municipal ordinance in its application for development.

© 2022 Giordano, Halleran & Ciesla, P.C. All Rights Reserved National Law Review, Volume VIII, Number 177
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About this Author

Afiyfa H. Ellington  Counsel Litigation Environmental & Land Use Litigation Construction Law & Litigation Insurance Law
Counsel

Afiyfa focuses her practice in litigation and appeals with an emphasis on contract, business, commercial, environmental and land use.  She analyzes case law pertinent to a variety of legal disputes and prepares detailed memoranda regarding the viability of related litigation. Afiyfa prepares complaints, answers, motions, trial briefs and other legal pleadings in support of her clients' positions. She represents clients before state and federal courts, as well as alternative dispute resolution forums.

732-741-3900
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