Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of the Twp. of Franklin

187 A.3d 142, 233 N.J. 546
CourtSupreme Court of New Jersey
DecidedJune 20, 2018
DocketA-89 September Term 2016; 079076
StatusPublished
Cited by49 cases

This text of 187 A.3d 142 (Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of the Twp. of Franklin) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of the Twp. of Franklin, 187 A.3d 142, 233 N.J. 546 (N.J. 2018).

Opinion

JUSTICE SOLOMON delivered the opinion of the Court.

**550N.J.S.A. 40:55D-10.5, a section of the Municipal Land Use Law, provides that "development regulations which are in effect on the date of submission of an application for development shall govern the review of that application for development." That rule is known as the Time of Application Rule (TOA Rule), and this appeal turns on whether an incomplete application triggers the TOA Rule's protections.

Plaintiff Dunbar Homes, Inc., (Dunbar) sought to build garden apartments in Franklin Township (Township), and applied for site plan approval and a "conditional use special reasons" variance **551pursuant to N.J.S.A. 40:55D-70(d)(3) ((d)(3) variance).1 Dunbar's application lacked a number of documents required under the Township's Zoning and Subdivision Ordinance (Ordinance). *145One day after Dunbar submitted its application for site plan approval and a (d)(3) variance, the Township formally adopted an ordinance that, as Dunbar knew, had been introduced weeks earlier. That ordinance eliminated garden apartments as a permitted use. Thereafter, the Township notified Dunbar that it would have to apply for a "restricted use special reasons" variance under N.J.S.A. 40:55D-70(d)(1) ((d)(1) variance).2

Dunbar appealed the Township's decision to the Zoning Board of Adjustment (Board), arguing that the application was "complete" upon submission and was therefore protected by the TOA Rule. The Board denied the appeal. The trial court reversed the Board, finding that the TOA Rule applied because the contents of the application permitted the Township to conduct a "meaningful review."

The Township appealed the trial court's decision and the Appellate Division reversed. We now affirm the Appellate Division's determination. The plain language of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -136, defines an "application for development" as "the application form and all accompanying documents required by ordinance." N.J.S.A. 40:55D-3. Because Dunbar's application lacked many of the documents required by the Ordinance, the application was not complete upon submission and does not benefit from the TOA Rule.

**552I.

A.

Dunbar is a land developer and residential builder that owns a 276-unit garden apartment complex in the Township's General Business Zone (GB-Zone). Dunbar also owns 6.93 acres adjacent to the complex. Over the summer of 2013, Dunbar sought approval to develop an additional fifty-five garden apartments, which at that time were a permitted conditional use in the GB-Zone. As such, construction of the additional apartments required a (d)(3) variance, and submission of an application for site plan approval and a (d)(3) variance.

On May 28, 2013, the Township introduced and scheduled a public hearing for an ordinance that eliminated garden apartments as a permitted conditional use in the GB-Zone. The Township adopted the new ordinance on July 16, 2013, and it became effective on August 5, 2013.

On June 28, 2013, eighteen days before it adopted its new zoning ordinance, the Township advised Dunbar of the potential GB-Zone change. On July 15, 2013--the day before the Township adopted its new ordinance-Dunbar submitted an application to the Planning Board for site plan approval and a (d)(3) variance to build the additional apartments in the GB-Zone.

On August 7, 2013, two days after the Township's new zoning ordinance eliminated garden apartments as a conditional use in the GB-Zone, a Township zoning officer emailed Dunbar to indicate that its application was incomplete. The zoning officer provided a list of items "needed for completeness" and instructed Dunbar that it would need to apply for a (d)(1) variance instead of a (d)(3) variance because "garden apartments are not permitted in the GB Zone." Since a (d)(3) variance need not *146meet the stringent standards required for a (d)(1) variance,3 approval of Dunbar's application for a (d)(1) variance was less likely. See **553Medici v. BPR Co., 107 N.J. 1, 9-18, 526 A.2d 109 (1987). Dunbar later submitted the additional materials, and on October 29, 2013, its application for site plan approval and (d)(1) variance was certified as "complete."

B.

Dunbar filed a notice of appeal to the Board claiming that the TOA Rule preserved, for the purpose of its site plan application, the zoning ordinance in place at the time Dunbar submitted the application. In its appeal to the Board, Dunbar did not dispute the zoning officer's deficiency findings.

At a public hearing on the application, Dunbar presented the testimony of two experts. First, John Chadwick, a professional planner, conceded that Dunbar's application lacked items required by the Ordinance for site plan or variance approval but opined that despite those deficiencies Dunbar's application was sufficient. Second, Dunbar presented the testimony of Robert Washburn, an expert in New Jersey land use law. Washburn stated that a completeness requirement would frustrate the purpose of the MLUL, and that the Ordinance was invalid because it required a "complete application." Washburn asserted that the MLUL required an "application for development" rather than a "complete application for development" to trigger the protections of the TOA Rule.

The Township argued that, pursuant to Section 112-4 of the Ordinance, an application for development had to be "complete"

**554for the TOA Rule to apply. The Board agreed with the Township's view and unanimously denied Dunbar's appeal. The Board determined that Dunbar's initial application was not an "application for development" as defined by the Ordinance because it did not include the materials required by the Ordinance. Thus, because the application was not deemed "complete" until after the effective date of the ordinance prohibiting garden apartments in the GB-Zone, the TOA Rule did not shield Dunbar from Franklin's new zoning ordinance, and Dunbar was required to obtain a (d)(1) variance.

C.

Dunbar filed a complaint in lieu of prerogative writs against the Board and the Township, asserting that the Board's decision was arbitrary and capricious or unreasonable. Dunbar also claimed that the Township's denial of the application was invalid and ultra vires because it conflicted with the MLUL's TOA Rule. The trial court agreed and reversed the Board.

In an oral opinion, the trial court considered the legislative history of the TOA Rule, determining that the Legislature's omission of the word "complete," which was included in a proposed 2004 version of

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Bluebook (online)
187 A.3d 142, 233 N.J. 546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunbar-homes-inc-v-zoning-bd-of-adjustment-of-the-twp-of-franklin-nj-2018.