Supreme Court Rules That “Complete” Application Must be Filed for Time of Application Rule to Apply

On June 20, 2018, the New Jersey Supreme Court handed down its decision in Dunbar Homes, Inc. v. Zoning Board of Adjustment of Township of Franklin and affirmed the Appellate Division’s holding that a “complete” application for development, as defined under the Municipal Land Use Law ("MLUL"), must be filed in order for a developer to take advantage of the “time of application” rule. This typically means that the application form, fees, and all checklist requirements under the ordinance (for a site plan, subdivision and/or variance application) must be filed.  

Under N.J.S.A. 40:55D-10.5, a developer-applicant is entitled to have its application considered by the local planning or zoning board under the zoning ordinances in effect at the time the developer files the application.  This is typically known as the "time of application" rule.  In Dunbar Homes, the Supreme Court affirmed that in order for the "time of application" rule to apply, a "complete" application, as defined under the MLUL, must be filed.  This means that the application form, fees, and all checklist requirements under the ordinance (for a site plan, subdivision and/or variance application) must be filed at the outset in order for a developer-applicant to receive the benefit of the "time of application" rule.

Unlike the Appellate Division, however, the Court recognized the ability of an applicant to request waivers from checklist submission requirements and so long as those waivers are requested when the application is initially filed, the application will be deemed “provisionally complete” for purposes of applying the time of application rule, and will be deemed “complete” once the Board grants the waivers requested.  If the submission waivers are denied, however, the time of application rule would not apply to the initial filing of the application.  The Board's decision to deny the waiver, however, will be subject to Court review.

The full Dunbar Homes decision can be read at the link above.  For any questions concerning this important decision, as well as concerning the Municipal Land Use Law generally, please contact Mike Peacock, Esquire at (609) 927-1177.