Agenda - Planning Commission - 09/06/2018

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Zoning Bulletin August 10, 2018 I Volume 12 I Issue 15 Citation: Dunbar Homes, Inc. v. Zoning Board of Adjustment of Township of Franklin, 2018 WL 3041000 (N.J. 2018) NEW JERSEY (06/20/18)--This case addressed the issue of whether an incomplete zoning application triggers New Jersey's Time of Application Rule (the "TOA Rule") (N.J.S.A. 40:55D-10.5)—which provides that "development regulations which are in effect on the date of the submission of an application for development shall govern the review of that application for development." More specifically, the case addressed the issue of "whether an application for develop- ment that does not include all required materials should be considered an 'ap- plication for development' for purposes of the TOA Rule." The Background/Facts: Dunbar Homes, Inc. ("Dunbar") was a land developer and residential builder. Dunbar owned a 276-unit garden apartment complex in a General Business Zone ("GB -Zone") in Franklin Township (the "Township"). Dunbar also owned 6.9 acres adjacent to its apartment complex. Dunbar sought to develop on those 6.9 acres an additional 55 garden apartments. At the time Dunbar was considering the proposed development, under the Township's zoning ordinance, garden apartments were a permitted conditional use in the GB -Zone. As such, Dunbar was required to obtain a (d)(3) variance and site plan approval. However, in May 2013, the Township introduced a proposed ordinance that eliminated garden apartments as a permitted conditional use in the GB -Zone. One day before the public hearing on that proposed ordinance, Dunbar submitted an application to the Township's Planning Board for site plan approval and a (d)(3) variance to build those additional 55 garden apartments. The next day, July 16, 2013, the Town adopted the new ordinance eliminating garden apartments as a permitted conditional use in the GB -Zone. The new ordinance became effective on August 5, 2013. On August 7, 2013, a Township zoning officer notified Dunbar that its application was incomplete. As such, and given the effectiveness of the new ordinance, Dunbar was instructed that it would now need to apply for a (d)(1) variance (with stricter standards) instead of a (d)(3) variance. Dunbar appealed the zoning officer's determination to the Township's Zoning Board of Adjustment (the "Board"). Dunbar argued that its application was "complete" upon submission and therefore was protected by New Jersey's Time of Application ("TOA") Rule. The TOA rule provides: "Notwithstanding any provision of law to the contrary, those development regula- tions 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." (N,J.S.A. 40:55D-10.5.) Dunbar argued that, therefore, for the purpose of its application, the TOA Rule preserved the zoning ordinance in place at the time Dunbar submitted its application (allowing garden apartments as permitted conditional uses, and requiring a less stringent (d)(3) variance). Dunbar contended that despite some admitted deficiencies in its application, its application was "sufficient." It also argued that requiring its application be "complete" for the TOA Rule to be effec- tive would "frustrate the purpose" of New Jersey's Municipal Land Use Law ("MLUL") (which includes the TOA Rule), which only required an "application for development" rather than a "complete application for development" to trig- ger the protections of the TOARule. © 2018 Thomson Reuters