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NJ Supreme Court Affirms That Only Complete Development Applications are Protected by “Time of Application” Rule

Jun 28, 2018 | Written by: Tara St. Angelo, Esq. |

In Dunbar Homes, Inc. v. Zoning Bd. of Adj. of Franklin Twp., 2018 WL 3041000 (N.J. June 20, 2018), the NJ Supreme Court upheld the decision of the Appellate Division that incomplete development applications do not benefit from the “Time of Application” rule.

The Time of Application rule 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.”  N.J.S.A. 40:55D-10.5.  Franklin Township had introduced and adopted an ordinance to eliminate garden apartments as permitted conditional uses in certain zoning districts.  Eighteen days before the effective date of the ordinance, the plaintiff Dunbar Homes, Inc. submitted an application to the Planning Board for site plan and conditional use approval to construct garden apartments.  The Township’s Zoning Officer reviewed the application and determined that the application was incomplete pursuant to the Township’s ordinances.  The zoning officer advised the plaintiff of the incomplete application and instructed the plaintiff to apply for a use variance due to the recently adopted ordinance. 

On appeal, the Superior Court held that the application was “functionally” complete enough to trigger protection under the Time of Application rule.  The Township appealed that decision, which was reversed by the Appellate Division.  The Supreme Court granted certification.

In upholding the Appellate Division, the Supreme Court found that the Time of Application rule must be interpreted in conformance with all defined terms set forth in the municipal land use law (MLUL).  Therefore, the term “application for development” as used in the Time of Application rule, must be interpreted to mean the “application form and all accompanying documents required by ordinance for approval…” as set forth in the MLUL.  N.J.S.A. 40:55D-3.  The Court further found that although the term “complete” is not used in the Time of Application rule, the definition of an application for development references local ordinance provisions that list application requirements.  Therefore, because the plaintiff’s application was deemed incomplete, it did not enjoy the protection of the Time of Application rule.

However, the Court noted that there were “practical limits” on a Board’s determination of completeness.  First, an application can still be considered complete for the purposes of the Time of Application rule if the municipality requires the submission of corrected or additional information.  Second, an applicant’s request for waivers will “provisionally trigger” the Time of Application rule.  If the Board denies the requested waivers, its decision will be subject to review.


Tara St. Angelo, Esq. concentrates her practice primarily in the areas of municipal and land use law.  She was named to the NJ Super Lawyers Rising Stars list for State, Local and Municipal law by Thomson Reuters in 2017 and 2018. Contact Ms. St. Angelo at Gebhardt & Kiefer, PC at 908-735-5161 or via email.

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