With New Jersey as probably the most developed state in the nation, all of the easy pieces of property have already been developed. Naturally the developer will want to make the most productive use of the land within the bounds of the local land use ordinance. Municipal land use ordinances are complicated, with lots of rules. It gets even tougher if the municipality can change the rules in the middle of the application process, even in direct response to it.
The Municipal Land Use Law has long provided that municipalities may prescribe forms for land use applications and adopt a checklist ordinance specifying what has to be submitted before an application is deemed “complete” so as to start the clock running for the board to consider and decide the application.
Until 2011 New Jersey operated under what was known as the “time of decision” rule, under which the municipal planning board or board of adjustment (or a reviewing court) was required to decide an application based upon the ordinance provisions in effect at the time the decision was made. Municipalities were specifically permitted not only to change the rules, up to and including whether the use was permitted, while the application was pending, but even in direct response to it. Time and money could be wasted pursing approval for a development which was, up to the time that the application was decided, perfectly legal.
In 2010 the Legislature passed a law, which took effect one year later, that is often called the “time of application” rule. This statute 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 and any decision made with regard to it. Except for those relating to health and public safety, subsequent ordinance amendments are not applicable.
Recently the New Jersey Supreme Court answered a fundamental question about this statute, what constitutes the “application” that will freeze the rules, Dunbar Homes, Inc. v. Franklin Township Board of Adjustment (June 20, 2018). In that case the township was considering amending its zoning ordinance to prohibit garden apartments, previously a conditional use, in the zone in which the applicant owned property. The day before the final adoption of that ordinance the applicant, attempting to preserve the benefits of the current ordinance, submitted an application to build a garden apartment complex. The amendment was adopted as scheduled and two days after it took effect the zoning officer advised the applicant that its application was incomplete and due to the new ordinance required a different type of variance which would be more difficult to obtain.
The applicant appealed the zoning officer’s decision that the new ordinance applied to the board of adjustment which denied the appeal. The applicant further appealed to the Superior Court, Law Division, which ruled that the time of application rule did not require a “complete” application, merely one with enough information so that a meaningful review of the application could commence. The trial court further determined that the application that had been submitted met that standard. The Township appealed to the Superior Court, Appellate Division, which reversed. The New Jersey Supreme Court granted discretionary review.
The Supreme Court affirmed the Appellate Division’s ruling. The Court based its decision on the Municipal Land Use Law’s definition of “application for development” which is the application form and all accompanying documents required by ordinance and described this result as a “clear, easily applied, and objective standard.” The Court did not require that the application have been formally determined to be complete and allowed for the applicant to request a waiver for some items which, if granted, would allow for the application to be deemed complete and protected by the time of application rule.
The land use application process always requires close coordination between the applicant, an experience attorney and one or more design professionals (engineer, surveyor, and/or architect) to satisfy municipal submission and substantive requirements. Attorneys at Schiller, Pittenger & Galvin, P.C., are familiar with this process.