Agenda - Planning Commission - 05/04/2017

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April 10, 2017 I Volume 11 I Issue 7 Zoning Bulletin The Superior Court of New Jersey, Appellate Division, concluded that the "time of application rule" was not triggered in May 2013 when Dunbar first filed its submission for a (d)(3) variance. Although the court concluded that Dunbar's application for development "need not be complete" to trigger the time of ap- plication rule, the court found that to trigger the time of application rule, the ap- plication did have to include certain documents required by the Ordinance. Since Dunbar's application failed to include some of those Ordinance -required docu- ments at the time of initial submission, the court concluded that Dunbar's ap- plication did not trigger the time of application rule prior to the effective date of the amendment ordinance. In so holding, the court looked at the plain language of the statute and the legislative history of the statute and found 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." Looking at New Jersey's Municipal Land Use Law ("MLUL"), the court found that the MLUL definition for "application for development," N.J.S.A. 40:55D-3, is "mandatory in construing the time of application rule" because the Iaw requires "uniform and efficient procedures." The court found that the language of the MLUL's "application for development" definition made clear what a submission of an application must include to constitute an "application for development" protected by 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." Thus, said the court, the documents that are necessary to satisfy this standard for a submission to constitute an "application for development" protected by the time of application rule are "dictated by the nature of the application(s) sought and the requirements for each application in effect at the time the submis- sion is made." See also: Jai Sal Ram, LLC v Planning/Zoning Bd. of Borough of South Toms River, 446 N.J. Super: 338, 141 A.3d 407 (App. Div. 2016), certification denied, 2016 WL 6301506 (N.J. 2016). See also: Rumson Estates, Inc. v. Mayor & Council of Borough of Fair Haven, 177 N.J. 338, 828 A.2d 317 (2003). Case Note: Inits decision, the court acknowledged that N.J.S.A. 40:55D-I0.3 does state that "faln ap- plication for development shall be complete for purposes of commencing the applicable time period for action by a municipal agency . ... " (emphasis added). The court said that the "shall be complete" language defined "when the clock starts ticking for automatic ap- proval provisions" related to a municipal agency's inaction after a complete application is submitted; it (completeness) did not define when the clock starts ticking for the time bf ap- plication rule protections. Case Note: The court noted that should a municipal agency require additional information —above and beyond that required by the applicable ordinance —an application would not be deemed "incomplete" for purposes of time of application rule because it lacked that ad- ditional information. Only those documents required by the ordinance for submission are 4 © 2017 Thomson Reuters