Agenda - Planning Commission - 09/06/2018

Home

August 10, 2018 I Volume 12 I Issue 15 Zoning Bulletin The Township argued that the zoning ordinance required an application for development to be "complete" for the TOA Rule to apply. Agreeing with the Township's view, the Board denied Dunbar's appeal. The Board determined that Dunbar's application was not an "application for develop- ment" as defined by the ordinance because it did not include materials required by the ordinance. Thus, the Board concluded that because Dunbar's application was not deemed "complete" before the effective date of the ordinance prohibit- ing garden apartments in the GB -Zone, the TOA Rule did not shield Dunbar from the Township's new zoning ordinance, and Dunbar was required to obtain a (d)(1) variance for its proposed development. Dunbar appealed to the superior court. The superior court determined that the TOA Rule should apply "if the applicant provide[s] enough information .. . so that a meaningful review of the application can commence." And, here, the court found that Dunbar's submission met that standard. The court thus concluded that Dunbar's application was protected by the TOA Rule. The Township appealed. The Appellate Division reversed the trial court. In doing so, the Appellate Division rejected the trial court's "enough information for meaningful review" standard. The Appellate Division instead held that an ap- plication must meet the definition of "application for development" under the MLUL. Under the MLUL (N.J.S.A. 40:55D-3), "application for development" is defined as "the application form and all accompanying documents required by ordinance for approval of a subdivision plat, site plan, planned development, cluster development, conditional use, zoning variance or direction of the issu- ance of a permit." Thus, the Appellate Division concluded that "[t]he benchmark for determining whether documents required for the submission to constitute an application for development .. . is whether they are specifically required by the ordinance." Applying that standard to Dunbar's application, the Appellate Divi- sion concluded that Dunbar's submission did not constitute an "application for development" within the meaning of the MLUL because it did not include all items required by the ordinance. Accordingly, the Appellate Division determined that therefore the Board's decision not to extend the protection of the TOA Rule to Dunbar's submission was not arbitrary or capricious or unreasonable. Dunbar petitioned for certification, and the Supreme Court of New Jersey granted the petition. DECISION: Judgment of Appellate Division affirmed. Agreeing with the Appellate Division and looking at the plain language of the MLUL, the Supreme Court of New Jersey held that for protections of the TOA Rule to apply, an "application for development" must include the information and all accompanying documents required by the relevant municipal ordinance. In its holding, the court rejected Dunbar's argument that the TOA Rule did not require a "complete" application. The court found that although the TOA Rule did not use the word "complete," it explicitly cross-referenced the local ordinance provisions of the MLUL, which list application requirements. (See N.J.S.A. 40:55D-3, defining "application for development.") The court found support for its position in noting that such a "clear, easily, ap- plied, and objective standard advances the MLUL's goal of statewide consis- tency and uniformity in land use decisions." The court explained that such a standard "requires that the zoning officer compare the contents of a submission to the requirements of the municipal ordinance; it does not require review of each submission to determine whether a `meaningful review' can be undertaken." 4 ©2018 Thomson Reuters