Agenda - Planning Commission - 05/04/2017

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Zoning Bulletin April 10, 2017 I Volume 11 I Issue 7 NEW JERSEY (02/14/17)—This case addressed, as a matter of first impres- sion, the issue of when a submission to a municipal planning board of an "ap- plication for development" triggers the time of application rule, which provides that regulations in effect "on the date of submission of an application for develop- ment" govern the review of the application. The Background/Facts: Dunbar Homes, Inc. ("Dunbar") owned a garden apartment complex in the General Business ("GB") zone in the Township of Franklin (the "Township"). Dunbar sought to construct 55 additional apartments on 6.93 acres that it owned adjacent to the garden apartment complex. Because the Township's zoning ordinance required a minimum of 10 acres for garden apartments as a conditional use in the GB zone, Dunbar needed to seek a conditional use variance. On May 27, 2013, Dunbar filed a submission with the Township's Planning Board, seeking a variance under New Jersey statutory law—N.J.S.A. 40:55D- 70(d)(3) (the "(d)(3) variance"). (A (d)(3) variance may permit a "deviation from a specification or standard.") The next day, the Township introduced an ordinance that would delete "garden apartment developments" from permitted conditional uses in the GB zone (the "amendment ordinance"). The amendment ordinance became effective August 5, 2013. On August 7, 2013, the Township's Senior Zoning Officer (the "ZO") notified Dunbar that it's application failed to include three items required by § 112-300 of the Township's Zoning and Subdivision Ordinance (the "Ordinance"): "[flour ad- ditional 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]." The ZO also notified Dunbar that, pursuant to the newly adopted amendment ordinance —which deleted garden apartment developments from conditions uses allowed in the GB zone —Dunbar was now required to seek a (d)(1) variance, and not a (d)(3) variance. (A (d)(1) variance may permit "a use or principal structure in a district restricted against such use or principal structure.") Dunbar appealed to the Township's Zoning Board of Adjustment (the "Board"). Dunbar argued that because it had submitted its application before the effective date of the amendment ordinance, only a (d)(3) variance was required. Dunbar pointed to New Jersey's "time of application rule." Pursuant to N.J.S.A. 40:55D-10.5, regulations in effect "on the date of submission of an application for development" govern the review of the application. Dunbar argued that its submission need not be "deemed complete" for the "time of application rule" to apply, but only had to be "a substantial, bona -fide application . . . which gives the Township sufficient notice of the application and an understanding of the development being proposed." The Board affirmed the ZO's decision. It found that Dunbar's submission was not an "application for development" until October 29, 2013, when Dunbar provided the missing items required by § 112-300 of the Ordinance. Dunbar appealed to superior court. The trial judge reversed the Board's resolution. The judge found that neither the Ordinance or New Jersey statutory law required "completeness" for a submission to qualify as an "application for development" protected under the "time of application rule." The Township appealed. DECISION: Judgment of Superior Court reversed. © 2017 Thomson Reuters