By F. Clifford Gibbons, Esq. 1

Transcription

1 NEW JERSEY SUPREME COURT CONFIRMS MLUL DEFINITION OF APPLICATION FOR DEVELOPMENT AND SUSTAINS ROLE OF MUNICIPAL ZONING OFFICIALS IN EVALUATING SUFFICIENCY OF DEVELOPMENT APPLICATIONS By F. Clifford Gibbons, Esq. 1 Since the 2010 enactment of the Time of Application Rule, N.J.S.A. 40:55D ( TOA Rule ), disagreement has emerged as to what constitutes a filed application for development, triggering TOA Rule protections shielding an applicant from amendments to land use ordinances enacted by a municipality during the pendency of an application. Debate has also arisen regarding the discretion of municipal zoning officials to make determinations as to the sufficiency of an application for development. The foregoing issues were recently resolved by the New Jersey Supreme Court in the case of Dunbar Homes, Inc. v. Zoning Board of Adjustment of the Township of Franklin and the Township of Franklin, Docket No. A (2018). In Dunbar, the Supreme Court confirmed the primacy of the express language set forth in N.J.S.A. 40:55D-3 to define an application for development. In addition, the Court affirmed a zoning official s important role in evaluating the sufficiency of a development application against objective requirements set forth in an ordinance or checklist. Plaintiff, Dunbar Homes, Inc. ( Dunbar ), owned an existing 276-unit garden apartment complex and adjacent land in the Township of Franklin, Somerset County ( Township ), in the Township s General Business ( GB ) zone district. Dunbar planned to seek approval to construct 55 additional apartments on its neighboring land. Under the Township s existing zoning ordinance, such construction would require a variance under N.J.S.A. 40:55D-70(d)(3) for deviation from a specification or standard related to a conditional use. Beginning in March, 2012, the Township, as part of a long-envisioned, comprehensive revision to its zoning ordinance, sought to eliminate garden apartments as a conditional use in the GB zone. On May 28, 2013, the Township introduced and scheduled a public hearing for a zoning ordinance amendment eliminating garden apartments as a permitted conditional use in the GB zone ( GB Amendment ). Said amendment would require Dunbar to obtain a use variance for its planned apartments 1 Mr. Gibbons is the Owner and Managing Member of F. Clifford Gibbons, Attorney at Law, LLC in Princeton and is Of Counsel to Dolan and Dolan, P.A. in Newton. He serves as General Counsel to the New Jersey Association of Planning and Zoning Administrators, Assistant Counsel to the New Jersey Planning Officials and Chairman of the New Jersey State League of Municipalities Municipal Land Use Law Drafting Committee.

2 pursuant to N.J.S.A. 40:55D-70(d)(1) with a far more difficult burden of proof. On June 28, 2013, the Township advised Dunbar of the GB Amendment. The Township adopted the amendment on July 16, 2013, which became effective August 5, Meanwhile, on July 15, 2013, six (6) weeks after introduction of the GB Amendment and one (1) day prior to its adoption, Dunbar filed an application with the Township Planning Board for the aforementioned N.J.S.A. 40:55D-70(d)(3) conditional use variance and site plan approval, relying on the TOA Rule to shelter itself against the revisions set forth in the GB Amendment. Subsequent to Dunbar s filing, under date of August 7, 2013, the Township s Senior Zoning Officer, relying on both the definition of application for development set forth in N.J.S.A. 40:55D-3 and requirements contained in the Township zoning ordinance, notified Dunbar that its application had numerous deficiencies, including: (1) A sealed survey of the subject property; (2) A key map showing all zoning boundaries; (3) A location map showing the zoning of all properties within 200 feet of the subject property; (4) A site plan showing existing and proposed topography; (5) A site plan providing datum to which contour elevations refer; (6) A site plan indicating methods and placement of solid waste disposal facilities; (7) Four additional copies of the site plan application; (8) Drainage calculations; (9) A site plan indicating anticipated domestic water demand and the amount of effluent; (10) A submittal letter to the Department of Transportation; (11) Four additional copies of the site plan and architectural documents; (12) A necessary fee required by the zoning ordinance. Dunbar was further advised that due to the adoption of the GB Amendment on August 5,

3 2013, it would need to apply for a use variance under N.J.S.A. 40:55D-70(d)(1) instead of a conditional use variance under N.J.S.A. 40:55D-70(d)(3). Dunbar appealed the decision of the Senior Zoning Officer to the Township Zoning Board of Adjustment, seeking a determination that a conditional use variance was required rather than a use variance. The Board of Adjustment denied Dunbar s appeal, finding that Dunbar s initial application was not an application for development as defined by the Township zoning ordinance because it did not include the materials required by the ordinance. Therefore, the TOA Rule did not safeguard Dunbar from the GB Amendment, and Dunbar was required to obtain a (d)(1) use variance. Dunbar filed a Complaint in Lieu of Prerogative Writ against the Township and Board of Adjustment, claiming that the Township s rejection of Dunbar s June 15, 2013 submission was invalid, ultra vires and violative of the TOA Rule. Dunbar also challenged the Board of Adjustment s denial of Dunbar s appeal as arbitrary, capricious and unreasonable. The trial court reversed the denial, conducted its own review of Petitioner s submission, and unilaterally determined that same presented sufficient material to permit a meaningful review of the application by the Board of Adjustment. In undertaking said review, the trial court read the requirements for a complete application set forth in N.J.S.A. 40:55D-10.3 in pari materia with the TOA Rule and reached a legal conclusion, contrary to the facts and law, that Petitioner s application for development complied with the definition set forth in N.J.S.A. 40:55D-3. The trial court further held that Dunbar was entitled to the protections of the TOA Rule and could therefore pursue a conditional use variance for its additional apartments. The Township appealed the trial court s ruling to the Appellate Division, which reversed the trial court, rejected the meaningful review standard and re-confirmed the primacy of the express language set forth by the legislature in N.J.S.A. 40:55D-3 to define an application for development. Also sustained was role of a municipal zoning official in evaluating the sufficiency of a development application against objective requirements set forth in an ordinance or checklist. 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 ordinance. Dunbar Homes, Inc,. v. Zoning Board of Adjustment of Franklin, 448 N.J. Super. 583, (App. Div. 2017). Dunbar petitioned the New Jersey Supreme Court for Certification, which was granted. The Supreme Court also granted leave to the New Jersey Builders Association, NAIOP New Jersey Chapter, Inc., International Council of Shopping Centers, New

4 Jersey State Bar Association, New Jersey State League of Municipalities and New Jersey Institute of Local Government Attorneys as amici curiae. The Supreme Court, in a unanimous 9-0 decision, affirmed the Appellate Division. The Court, citing N.J.S.A. 40:55D-3, held that: [T]he term application for development must be interpreted to mean 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 issuance of a permit... [D]eterminations as to the precise contents of an application for development are thus left to municipalities, in accordance with the Legislature s general exercise of its constitutional authority to delegate to municipalities the police power to enact ordinances governing land use through the passage of the MLUL. 388 Route 22 Readington Realty Holdings LLC v. Township of Readington, 221 N.J. 318, 339 (2015). Significantly, [b]ecause the planning and zoning power stems from legislative allowance, it must be exercised in strict conformity with the delegating element - the MLUL. Nuckel v. Borough of Little Ferry Planning Board, 208 N.J. 95, 101 (2011). The Court rejected a claim by Dunbar that the Township had failed to adopt, by ordinance, a checklist for use and compliance with by development applicants, as required by the completeness requirements of the MLUL set forth in N.J.S.A. 40:55D The Court held that the Township s incorporation, within its zoning ordinance, of a detailed checklist and description of each application requirement for agency review, provided a clear, easily applied and objective standard sufficient for compliance with both MLUL completeness requirements and the TOA Rule. The Court distinguished the Township s standard from that imposed by the trial court and rejected by the Appellate Division: The 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. The Court agreed with the Appellate Division that the meaningful review standard was fatally imprecise and inconsistent with the Legislature s intent that the MLUL bring consistency, statewide uniformity, and predictability to the approval process. Having re-established the N.J.S.A. 40:55D-3 standard to determine if a

5 developer s submission was an application for development, the Supreme Court concurred in the Appellate Division s finding that the materials filed by Dunbar failed to meet the requirements of the Township zoning ordinance. Therefore, said materials were not an application benefitting from the TOA Rule and the decision of the Township s Senior Zoning Officer, and the Board of Adjustment s affirmation of that decision, were sustained by the Court. In making its ruling, the Court noted some important practical limits to board determinations based upon an application s failure to include all required materials. First, an application is not rendered incomplete simply because a municipality requires correction of any information found to be in error and submission of submission of additional information not specified in the ordinance or any revisions in the accompanying documents. N.J.S.A. 40:55D Second, in the event information required by a local ordinance is not pertinent, the applicant may request a waiver as to that information or those documents its finds extraneous. The applicant s submission will provisionally trigger the TOA Rule if a waiver request for one or more items accompanies all other required materials; if the board grants the waiver, the application will be deemed complete. Should the board deny the waiver, its decision will be subject to review. Grabowsky v. Township of Montclair, 221 N.J. 536, 551 (2015). The Supreme Court decision in Dunbar restores order to the application review process. By decisively rejecting the trial court s ambiguous reading of N.J.S.A. 40:55D and N.J.S.A. 40:55D-10.5 to determine the existence of an application for development, the Court affirmed the clear, well-established definition of such an application. The Court also confirmed its own historical approach to repose confidence in and not interfere with the judgment of local zoning officials.