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Supreme Court Clarifies Applications Protected by the Time of Application Rule

On June 20, 2018, the Supreme Court of New Jersey issued its decision in Dunbar Homes, Inc. v. Zoning Board of Adjustment of the Township of Franklin, addressing whether an incomplete site plan application triggered the Municipal Land Use Law’s (MLUL) Time of Application Rule (TOA). The opinion supports a “clear, easily applied, and objective standard” for the TOA Rule.

The TOA Rule replaced the former “time of decision rule,” which allowed municipalities to amend zoning ordinances to block development after an application had been filed. The New Jersey Legislature enacted the TOA Rule in 2010 to provide greater certainty to developers and property owners who expend considerable money and time for applications that can be frustrated by zoning changes. The TOA Rule requires local boards to apply only “those development regulations that are in effect on the date of submission of an application for development” when reviewing a particular application.

The Dunbar decision is significant because it clarifies that the mere submission of an application does not trigger the TOA Rule. The trial court previously held that the site plan application filed by Dunbar Homes, Inc. was protected from a zoning amendment because the application included enough information for the zoning board to conduct a “meaningful review.” However, the Supreme Court, agreed with the appellate court that the trial court’s standard was “fatally imprecise” and that the application was not protected from a zoning change by the TOA Rule.

The Court relied upon the MLUL’s definition of an “application for development” and held that the “precise contents” of an application seeking the TOA Rule’s protections is controlled by the local ordinance that adopts an application checklist. Responding to arguments by amicus curiae, NAIOP and New Jersey Builders Association (NJBA), that applications commonly request waivers from checklist submission requirements, the court set “important practical limits” that (1) an application cannot be deemed incomplete just because information needs correction or if additional information not required by ordinance is requested; and (2) an applicant may request a waiver to provisionally trigger the TOA Rule. The application in Dunbar was not protected by the TOA Rule because, despite filing its application before an ordinance amendment, the application lacked materials required by ordinance and no waiver was requested. The Dunbar decision demonstrates that it is critical to understand local ordinances and requirements in application checklists.

The Dunbar decision adds to the list of decisions that continue to define and refine the TOA Rule.  Connell Foley will continue to monitor case law on this issue. If you have questions concerning the applicability of the TOA Rule to a particular project, please contact Kevin Coakley (kcoakley@connellfoley.com), Nicole Dory (ndory@connellfoley.com) or Michael Affrunti (maffrunti@connellfoley.com).

  • Partner

    Nicole Dory concentrates her practice on environmental and land use transactions and litigation and other complex business litigation matters. With a degree in geology and experience as an environmental consultant, she applies ...

  • Associate

    Michael Affrunti is an associate in Connell Foley’s Real Estate and Land Use Group, where he assists with a combination of commercial real estate transactions and land use matters. Michael’s experience ranges from a host of ...

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