In a recent decision, the New Jersey Supreme Court sided with municipalities, affording municipal officials the discretion to determine when an application is considered complete for purposes of the Time of Application Rule. The landmark ruling is expected to discourage developers from filing applications immediately before new land use ordinances take effect in an attempt to obtain more favorable treatment.
Adopted in 2011, the Time of Application Rule requires land use boards to apply the land use ordinance in effect at the time an application for development is filed rather than at the time the board makes its final decision. The prior rule was thought to be unfavorable to developers because municipalities had the opportunity to make changes to the land use ordinance after an application had been filed but before it was finally decided. The Time of Application Rule was adopted in part to protect developers, who were spending considerable amounts of money preparing an application only to have municipalities change the rules mid-stream.
The case involved proposed development of garden apartments in Franklin Township. One day before a new ordinance eliminating garden apartments as a permitted use was formally adopted, Dunbar Homes submitted an application for 276 units. As is common, at the time of the initial filing Dunbar’s application was missing various checklist items and the application was deemed incomplete by the Township’s zoning officer
The Township decided that the “Time of Application” was not the date when Dunbar first filed documents. Instead, it was the date the application was deemed complete. Because garden apartments were no longer a permitted use on the date of completeness, Dunbar was required to obtain a d variance in order to move forward with the project. Dunbar opted to appeal the Township’s completeness decision rather than seek the variance.
The Court sided with Franklin Township and held that in order to benefit from the Time of Application Rule, developers must submit all supporting documents required under the land use ordinance. It was noted that the information and documents were listed in the Township land use ordinance and provided clear guidance to the applicant.
While the decision was overwhelmingly in favor of the Township, the Court did outline some “practical limitations” to Board determinations of completeness. First, an application is not automatically rendered incomplete because of a mistake in the submission, or because the municipality requests additional information not specified in the ordinance. Second, if the applicant requests a waiver on certain checklist items, the application will “provisionally trigger the Time of Application Rule.” If the Board grants the waiver the application will be deemed complete. If denied, the Board’s decision is reviewed under the arbitrary and capricious standard.
It is now clear that if an applicant has not submitted all required documentation prior to the enactment of a new ordinance, the old ordinance will control. If you have questions, please do not hesitate to contact one of our Government Services attorneys: Tom Ryan, Esq. (email@example.com); Angelo Bolcato, Esq. (firstname.lastname@example.org); Ursula Leo, Esq. (email@example.com); Tom Prol, Esq. (firstname.lastname@example.org); Jessica Jansyn, Esq. (email@example.com); Will Thayer, Esq. (firstname.lastname@example.org); or Dick Sweeney, Esq. (email@example.com). Our attorneys can also be reached by phone at (973) 729-1880.