Agenda - Planning Commission - 09/06/2018

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Zoning Bulletin August 10, 2018 I Volume 12 I issue 15 Having determined that, to be protected by the TOA Rule, applicants must submit precisely what the MLUL (N.J.S.A. 40:55D-3) requires —"the applica- tion form and all accompanying documents required by ordinance for approval of a ... site plan, . . . conditional use, zoning variance or direction of the issu- ance of a permit" the court concluded that the Board's determination that Dunbar's application was not entitled to the protection of the TOA Rule and that Dunbar would have to complete a more stringent (d)(1) variance application was not "arbitrary and capricious or unreasonable." The court found it undisputed that Dunbar's submission lacked items mandated by the ordinance. Because Dunbar's application was incomplete and Dunbar had not sought a waiver, the court concluded that Dunbar's application could not benefit from the TOA Rule. See also: Grabowsky v. Township of Montclair; 221 N.J. 536, 115 A.3d 815 (2015). Case Note: In this case, the Supreme Court of New Jersey granted the following motions for leave to appear as amicus curiae: a joint motion by the New Jersey Builders Association, NAIOP New Jersey Chapter, Inc., and the International Council of Shopping Centers; a joint mo- tion by the New Jersey State League of Municipalities and the New Jersey Institute of Lo- cal Government Attorneys; and an individual motion by the New Jersey State Bar Association. Case Note: In its decision, the Supreme Court of New Jersey also noted "some important practical limits to Board determinations based on an application's failure to include all required materials." The court said that an application is not rendered "incomplete" simply because a municipality requires "correction of any information found to be in error and submission of additional information not specified in the ordinance or any revisions in the accompanying documents." (See N.J.S.A. 40:55D-10.3). Further, the court said that "in the event information required by local ordinance is not pertinent, the applicant may request a waiver as to that information or those documents it finds extraneous." (See N.J.S.A. 40:55D-10.3). In such a case, the court explained, if a waiver request for one or more items accompanies all other required materials, the applicant's submission will provisionally trigger the TOA Rule. Then, if the Board grants the waiver, the application will be deemed complete. If the Board denies the waiver, its decision will be subject to review under the customary "arbitrary and capricious or unreasonable" standard. © 2018 Thomson Reuters 5