DunbarHomes, Inc. v. Zoning Board of Adjustment of Franklin Township

Annotate this Case

Plaintiff Dunbar Homes, Inc., (Dunbar) owns a 276-unit garden apartment complex in the General Business Zone (GB-Zone) of Franklin Township (Township). 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 submission of an application for site plan approval and a “conditional use special reasons” variance pursuant to N.J.S.A. 40:55D-70(d)(3) ((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. Eighteen days before it adopted its new ordinance, the Township advised Dunbar of the potential GB-Zone change. 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. 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 under the Township’s Zoning and Subdivision Ordinance (Ordinance). The zoning officer provided a list of items “needed for completeness” and instructed Dunbar it would need to apply for a “restricted use special reasons” variance under N.J.S.A. 40:55D-70(d)(1) ((d)(1) variance) Since a (d)(3) variance need not meet the stringent standards required for a (d)(1) variance, approval of a (d)(1) variance was less likely. 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. Dunbar filed a complaint, asserting that the Board’s decision was arbitrary and capricious or unreasonable. The trial court agreed and reversed the Board, concluding that “there was enough submitted to functionally begin a review” of Dunbar’s application. Thus, the court found that Dunbar was protected by the TOA Rule and could therefore pursue a (d)(3) variance. The Township appealed the trial court’s decision and the Appellate Division reversed. The New Jersey Supreme Court affirmed the appellate court: "the plain language of the MLUL defines an 'application for development' as 'the application form and all accompanying documents required by ordinance.' 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."

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of
the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.)

Dunbar Homes, Inc. v. Zoning Board of Adjustment of Franklin Township
(A-89-16) (079076)

Argued April 9, 2018 -- Decided June 20, 2018

SOLOMON, J., writing for the Court.

N.J.S.A. 40:55D-10.5, a section of the Municipal Land Use Law (MLUL),
N.J.S.A.
40:55D-1 to -136, 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.

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 ordinance, the
Township advised Dunbar of the potential GB-Zone change. 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. 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
under the Township’s Zoning and Subdivision Ordinance (Ordinance). The zoning officer
provided a list of items “needed for completeness” and instructed Dunbar it would need to
apply for a “restricted use special reasons” variance under
N.J.S.A. 40:55D-70(d)(1) ((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 meet the stringent standards required for a (d)(1)
variance, approval of a (d)(1) variance was less likely.

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. Dunbar presented the testimony of two experts. A professional
1
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, an expert in New Jersey land use law stated that a completeness
requirement would frustrate the purpose of the MLUL. The Board denied the appeal.

Dunbar filed a complaint, asserting that the Board’s decision was arbitrary and
capricious or unreasonable. The trial court agreed and reversed the Board, concluding that
“there was enough submitted to functionally begin a review” of Dunbar’s application. Thus,
the court found that Dunbar was protected by the TOA Rule and could therefore pursue a
variance for the additional apartments under
N.J.S.A. 40:55D-70(d)(3). The Township
appealed the trial court’s decision and the Appellate Division reversed.
448 N.J. Super. 583
(App. Div. 2017). The Court granted certification.
233 N.J. 127 (2017).

HELD: The plain language of the MLUL 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.

1. The MLUL is a comprehensive statute that allows municipalities to adopt ordinances to
regulate land development in a manner which will promote the public health, safety, morals and
general welfare using uniform and efficient procedures. The TOA Rule, which took effect in
May 2011, replaced the former “time of decision rule,” which required that zoning boards and
reviewing courts apply the statute in effect at the time of the land-use application decision. The
time of decision rule allowed municipalities to change land-use ordinances after an application
had been filed, even in direct response to the application. The Legislature acknowledged that
the time of decision rule had produced “inequitable results.” A. Housing & Local Gov’t
Comm. Statement to A. 437 (2010). In order to “effectively prohibit[] municipalities from
responding to an application for development by changing the law to frustrate that application,”
ibid., the Legislature adopted the TOA Rule,
N.J.S.A. 40:55D-10.5. The terms used in the TOA
Rule are to be construed in accordance with any definitions set forth in the MLUL. Thus, the
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.”
N.J.S.A. 40:55D-3 (emphasis added). (pp. 16-18)

2. Determinations as to the precise contents of an application for development are thus left to
municipalities. Pursuant to its delegated power, the Township incorporated into its Ordinance a
detailed checklist and description of each application requirement for agency review. For the
purposes of the legal question posed by Dunbar, it is sufficient that a checklist of application
components are provided by the Ordinance. That list is anticipated in, and incorporated by, the
MLUL definition of “application for development” in
N.J.S.A. 40:55D-3 and, by extension, the
TOA Rule of
N.J.S.A. 40:55D-10.5. Thus, to benefit from the protections of the TOA Rule, an
application for development in Franklin Township must contain the required information and
documents listed in the Ordinance. That clear, easily applied, and objective standard advances
the MLUL’s goal of statewide consistency and uniformity in land use decisions. (pp. 18-20)
2
3. The Court notes some important practical limits to Board determinations based on an
application’s failure to include all required materials. First, an application is not “incomplete”
simply because a municipality requires “correction of any information found to be in error and
submission of additional information.”
N.J.S.A. 40:55D-10.3. Further, in the event
information required by ordinance is not pertinent, the applicant may request a waiver.

N.J.S.A. 40:55D-10.3. 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, then the application will be deemed complete. If the Board denies the
waiver, its decision will be subject to review. (p. 20)

4. Although the TOA Rule does not use the word “complete,” it explicitly cross-references the
local ordinance provisions that list application requirements. The MLUL’s “completeness
provision,”
N.J.S.A. 40:55D-10.3, has no bearing on whether an application receives the
protection of the TOA Rule. (p. 21)

5. The Township’s relevant Ordinance provisions list the information and materials required
for site plan and variance applications. Dunbar argues that the Township has conflicting
application requirements because, in addition to the Ordinance requirements for site plan and
variance applications, it lists requirements for a bifurcated submission. It is undisputed that,
whether Dunbar submitted a single application for site plan approval with a use variance or
separate applications for site plan approval and for a use variance, Dunbar failed to include
materials required by the Ordinance. It is inconceivable that Dunbar’s confusion about which
Ordinance provision applied resulted in its failure to comply with either. The Township’s
zoning officer properly determined that Dunbar’s application did not include “all accompanying
documents required by ordinance” and was, therefore, “incomplete.” Because the application
was incomplete and no waiver was sought, Dunbar’s application could not benefit from the
TOA Rule. Rather, Dunbar’s application was properly subjected to the (d)(1) variance
requirement. Hence, the decision of the Board was not arbitrary and capricious or
unreasonable, and the judgment of the Appellate Division is affirmed. (pp. 21-24)

AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON’s opinion.

3
SUPREME COURT OF NEW JERSEY
A-
89 September Term 2016
079076
DUNBAR HOMES, INC.,

Plaintiff-Appellant,

ZONING BOARD OF ADJUSTMENT OF
THE TOWNSHIP OF FRANKLIN,

Defendant-Respondent,

and

TOWNSHIP OF FRANKLIN,

Defendant-Respondent.

Argued April 9, 2018 – Decided June 20, 2018

On certification to the Superior Court,
Appellate Division, whose opinion is
reported at
448 N.J. Super. 583 (App. Div.
2017).

Ronald L. Shimanowitz argued the cause for
appellant (Hutt & Shimanowitz, attorneys;
Ronald L. Shimanowitz and Bryan D. Plocker,
of counsel and on the briefs).

Louis N. Rainone argued the cause for
respondent Township of Franklin (Rainone
Coughlin Minchello, attorneys; Louis N.
Rainone, of counsel and on the briefs, and
Carol A. Berlen, on the briefs).

James J. Kinneally, III, argued the cause
for respondent The Zoning Board of
Adjustment of the Township of Franklin
(Marriott Callahan & Blair, attorneys;
1
respondent joins in the brief of respondent
Township of Franklin).

Meryl A.G. Gonchar argued the cause for
amici curiae New Jersey Builders
Association, NAIOP New Jersey Chapter, Inc.,
and International Council of Shopping
Centers (Sills Cummis & Gross and Flaster
Greenberg, attorneys; Meryl A.G. Gonchar,
Robert M. Washburn, and Melissa Hazell
Davis, on the brief).

Howard D. Geneslaw argued the cause for
amicus curiae New Jersey State Bar
Association (New Jersey State Bar
Association, attorneys; Robert B. Hille,
President, of counsel and on the brief, and
Michael D. DeLoreto, Howard D. Geneslaw, and
Cameron W. MacLeod, on the brief).

F. Clifford Gibbons argued the cause for
amici curiae New Jersey State League of
Municipalities and New Jersey Institute of
Local Government Attorneys (F. Clifford
Gibbons, of counsel and on the brief).

JUSTICE SOLOMON delivered the opinion of the Court.

N.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

2
for site plan approval and a “conditional use special reasons”

variance pursuant 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).

One 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.”

1 N.J.S.A. 40:55D-70(d)(3) allows a Zoning Board of Adjustment
to permit a “deviation from a specification or standard . . .
pertaining solely to a conditional use” for “special reasons.”

2 N.J.S.A. 40:55D-70(d)(1) allows a Zoning Board of Adjustment
to permit “a use or principal structure in a district restricted
against such use or principal structure” for “special reasons.”
3
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.

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

4
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 meet the stringent standards required for a (d)(1) variance,3

3 To justify a (d)(1) variance, an applicant must fit within at
least one of the three “special reasons” categories set forth in
N.J.S.A. 40:55D-70(d):

(1) where the proposed use inherently serves
the public good, such as a school, hospital or
public housing facility; (2) where the
property owner would suffer undue hardship if
compelled to use the property in conformity
with the permitted uses in the zone; and (3)
where the use would serve the general welfare
5
approval of Dunbar’s application for a (d)(1) variance was less

likely. See Medici v. BPR Co.,
107 N.J. 1, 9-18 (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.”

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

because the proposed site is particularly
suitable for the proposed use.

[Nuckel v. Borough of Little Ferry Planning
Bd.,
208 N.J. 95, 102 (2011) (citations and
internal quotation marks omitted) (quoting
Saddle Brook Realty, LLC v. Twp. of Saddle
Brook Zoning Bd. of Adjustment, 388 N.J.
Super. 67, 76 (App. Div. 2006)).]
6
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”

for 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.

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

7
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 the statute, revealed the

Legislature’s intent not to require a “complete” application to

trigger the TOA Rule. Thus, the court reasoned, the TOA Rule’s

use of the word “application” without reference to

“completeness” suggests the need for a “determination of what’s

an application independent as to whether there was a formal

declaration of completeness.”

The court read the TOA Rule in conjunction with
N.J.S.A.

40:55D-10.3 to find that a municipal land use ordinance must set

forth a checklist to provide a “clear understanding[] of what is

required” for submission. It ruled that absent such a

checklist, the TOA Rule should apply “if the applicant

provide[s] enough information . . . so that a meaningful review

of the application can commence.” The trial court then reviewed

Dunbar’s original submission under this standard, concluding

that “there was enough submitted to functionally begin a review”

of Dunbar’s application. Thus, the court found that Dunbar was

protected by the TOA Rule and could therefore pursue a variance

for the additional apartments under
N.J.S.A. 40:55D-70(d)(3).

8
The Township appealed the ruling to the Appellate Division,

which reversed the trial court. The panel rejected the trial

court’s “enough information for meaningful review” standard,

holding that courts must instead apply the definition of

“application for development” adopted by the Legislature in the

definitions section of the MLUL. Thus, the panel held 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 Bd. of Adjustment of Franklin,
448 N.J. Super. 583, 602-03 (App. Div. 2017) (citing
N.J.S.A.

40:55D-10.3). Applying that standard, the panel ruled that

Dunbar’s application failed to include documents required by the

Ordinance. Therefore, because Dunbar’s submission did not

constitute an “application for development” within the meaning

of the MLUL, the panel concluded that the Board’s decision not

to extend the protection of the TOA Rule to Dunbar’s submission

was not arbitrary and capricious or unreasonable.

Dunbar petitioned for certification, which this Court

granted.
233 N.J. 127 (2017). We also granted the following

motions for leave to appear as amicus curiae: a joint motion by

the New Jersey Builders Association, NAIOP New Jersey Chapter,

Inc., and the International Council of Shopping Centers

(collectively, NAIOP); a joint motion by the New Jersey State

9
League of Municipalities and the New Jersey Institute of Local

Government Attorneys (collectively, NJLM); and an individual

motion by the New Jersey State Bar Association (NJSBA).

II.

Dunbar claims that the appellate panel acknowledged that

the MLUL does not require completeness to apply the TOA Rule,

yet created a standard that essentially mandates “the submission

of a 100% complete application.” Dunbar also argues that the

appellate panel’s standard would foster the very “municipal

mischief” the TOA Rule sought to eradicate because it allows a

municipal officer to review and thereby delay an application,

which is not authorized under the MLUL. Dunbar cites as an

example the fact that, here, the Board had Dunbar’s application

for “several weeks,” yet waited until two days after the new

zoning ordinance became effective to advise Dunbar that it had

not submitted a complete application.

Dunbar warns that applying the Appellate Division’s

standard would effectively make any applicant that submitted

material with a request to waive submission of a document

ineligible for the TOA Rule’s protection even though the

submission would be retroactively rendered “complete” if the

Board granted a waiver at the public hearing. Although Dunbar

agrees that applicants rely on zoning board checklists under

10 N.J.S.A. 40:55D-10.3, it contends that the Appellate Division

erred in conflating Section 10.3’s completeness review and the

TOA Rule. That decision, according to Dunbar, frustrates the

TOA Rule’s purpose to remove uncertainty regarding future

municipal zoning changes by encouraging municipalities to “look

for even the most minor and technical 'deficiencies’ [in an

application] to effectuate a zoning change.”

The Township relies on the TOA Rule and
N.J.S.A. 40:55D-3

-- the MLUL’s definition of “application for development.”

According to the Township, those provisions specify that the TOA

Rule is triggered only upon submission of an “application for

development,” defined as “all documents required by the

ordinance for the approval sought by the applicant.” The

Township argues that if the Legislature intended “application

for development” to mean something other than what is already

provided by the statute, it would have said so when it passed

the TOA Rule.

The Township stresses that the MLUL’s application for

development definition “provides a bright-line inquiry” that

advances the overarching “goal of providing certainty to the

land development process.” The Township asserts that it

considered the GB-Zone change as part of a “comprehensive,

Township-wide revision to the Ordinance,” not as a means to

11
frustrate land use applications or harass applicants. The

Township highlights that the Board’s decision to change the

Ordinance to preclude garden apartments in the GB-Zone predated

Dunbar’s submission “as far back as March of 2012,” and that the

drafted ordinance implementing the change was introduced on May

28, 2013 -- six weeks before Dunbar’s submission.

Amicus NAIOP argues that the Appellate Division’s decision

created a new, non-prescribed procedure whereby municipalities

determine what constitutes an “application for development.”

NAIOP contends that Dunbar’s “minor, non-substantive

deficiencies” should not preclude protection under the TOA Rule

because the Legislature did not intend for an applicant to be

denied due to inconsequential deficiencies. Finally, NAIOP

warns that the Appellate Division’s opinion creates “a [new]

nonsensical second step” to the MLUL’s application process that

places into the municipalities’ hands whether an applicant is

afforded protection under the TOA Rule. NAIOP claims that such

authority is “the very evil the TOA Rule was enacted to protect”

against, and undermines the MLUL goals of consistency, statewide

uniformity, and predictability in land use decisions.

12
2.

Amicus NJLM urges this Court to affirm the Appellate

Division’s decision. NJLM asserts that the zoning officer

properly relied upon the MLUL and the Township’s relevant

ordinance provisions to make his determination that Dunbar had

failed to submit documents required for an application for

development. NJLM reasons that sections 112-192 and 112-300 of

the Township’s Ordinance serve as checklists under
N.J.S.A.

40:55D-10.3 because they list the requirements for development

applications. According to NJLM, the Appellate Division’s

decision “restored order to the application review process” by

following the MLUL’s express language and sustaining the

Township zoning officer’s role in evaluating land use

applications against ordinance requirements.

The NJSBA contends that the Appellate Division reached a

self-contradictory result by ruling that an application need not

be “complete” yet requiring that “all the application forms and

accompanying documents be submitted” before a completeness

determination is rendered. Drawing attention to common land use

application processes, the NJSBA claims that the appellate

panel’s opinion “fails to recognize that most development

applications are not complete when filed.” In light of this

standard practice, the NJSBA asserts that the panel’s decision

13
will operate to prevent many applications from receiving TOA

Rule protection.

III.

“[Z]oning boards, 'because of their peculiar knowledge of

local conditions[,] must be allowed wide latitude in the

exercise of delegated discretion.’” Price v. Himeji, LLC,
214 N.J. 263, 284 (2013) (quoting Kramer v. Bd. of Adjustment of Sea

Girt,
45 N.J. 268, 296 (1965)). A zoning board’s land use

decisions thus “enjoy a presumption of validity.” Ibid. “[T]he

action of a board will not be overturned unless it is found to

be arbitrary and capricious or unreasonable, with the burden of

proof placed on the plaintiff challenging the action.”

Grabowsky v. Township of Montclair,
221 N.J. 536, 551 (2015).

“On the other hand, however, a board’s decision regarding a

question of law . . . is subject to a de novo review by the

courts, and is entitled to no deference since a zoning board has

'no peculiar skill superior to the courts’ regarding purely

legal matters.” Chicalese v. Monroe Twp. Planning Bd.,
334 N.J.

Super. 413, 419 (Law Div. 2000) (citations omitted) (quoting

Jantausch v. Borough of Verona,
41 N.J. Super. 89, 96 (Law Div.

1956)); see also
388 Route 22 Readington Realty Holdings, LLC v.

Township of Readington,
221 N.J. 318, 338 (2015) (“In construing

the meaning of a statute, an ordinance, or our case law, our

review is de novo.”).

14
This case poses such a question of law: whether an

application for development that does not include all required

materials should be considered “an application for development”

for purposes of the TOA Rule,
N.J.S.A. 40:55D-10.5. In

answering that question, we strive to effectuate the

Legislature’s intent in enacting the TOA Rule; as we have

stressed, “[l]egislative intent 'is the paramount goal when

interpreting a statute and, generally, the best indicator of

that intent is the statutory language.’” State v. Marquez,
202 N.J. 485, 499 (2010) (quoting DiProspero v. Penn,
183 N.J. 477,

492 (2005)).

“When there is a conflict in interpretation,” we turn to

the “well-established canon of construction that 'a legislative

provision should not be read in isolation or in a way which

sacrifices what appears to be the scheme of the statute as a

whole.’” Koch v. Dir., Div. of Taxation,
157 N.J. 1, 7 (1999)

(quoting Zimmerman v. Mun. Clerk of Berkeley,
201 N.J. Super.
363, 368 (App. Div. 1985)). We therefore “read the statutes in

their entirety and construe 'each part or section . . . in

connection with every other part or section to provide a

harmonious whole.’” Marquez,
202 N.J. at 499 (ellipsis in

original) (quoting Bedford v. Riello,
195 N.J. 210, 224 (2008)).

Here, we consider the TOA Rule in the context of the MLUL.

IV.

15
A.

The MLUL is “a comprehensive statute that allows

municipalities to adopt ordinances to regulate land development

'in a manner which will promote the public health, safety,

morals and general welfare’ using uniform and efficient

procedures.” Rumson Estates, Inc. v. Mayor & Council of Fair

Haven,
177 N.J. 338, 349 (2003) (quoting Levin v. Township of

Parsippany-Troy Hills,
82 N.J. 174, 178-79 (1980)). The

provisions of the MLUL pertinent to this appeal are the TOA Rule

and the definitions section.

The TOA Rule, which took effect in May 2011, L. 2010, c. 9,

replaced the former “time of decision rule.” See A. Housing &

Local Gov’t Comm. Statement to A. 437 (2010). The time of

decision rule required that zoning boards and reviewing courts

“apply the statute in effect at the time of the [land-use

application] decision.” Pizzo Mantin Grp. v. Township of

Randolph,
137 N.J. 216, 235 (1994). The time of decision rule

allowed municipalities to “change . . . land-use ordinances

after an application ha[d] been filed, even 'in direct response

to the application.’” Ibid. (quoting Burcam Corp. v. Planning

Bd. of Medford,
168 N.J. Super. 508, 521 (App. Div. 1979)). The

Legislature acknowledged that the time of decision rule had

produced “inequitable results, such as when an applicant has

expended considerable amounts of money for professional services

16
and documentation that becomes unusable after [an] ordinance has

been amended.” A. Housing & Local Gov’t Comm. Statement to A.

437 (2010). In order to “effectively prohibit[] municipalities

from responding to an application for development by changing

the law to frustrate that application,” ibid., the Legislature

adopted the TOA Rule:

Notwithstanding any provision of law to the
contrary, those 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 and
any decision made with regard to that
application for development. Any provisions
of an ordinance, except those relating to
health and public safety, that are adopted
subsequent to the date of submission of an
application for development, shall not be
applicable to that application for
development.

[
N.J.S.A. 40:55D-10.5 (emphases added).]

The terms used in the TOA Rule are to be construed in

accordance with any definitions set forth in the MLUL. See

Norman J. Singer & J.D. Shambie Singer, 1A Sutherland Statutory

Construction § 20:8 (7th ed. 2008) (“The definition of a term in

the definitional section of a statute controls the construction

of that term wherever it appears throughout the statute.”).

Thus, the 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,

17
zoning variance or direction of the issuance of a permit.”

N.J.S.A. 40:55D-3 (emphasis added).

Determinations 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,
221 N.J. at 339. Significantly, “[b]ecause the

planning and zoning power stems from legislative allowance, it

must be exercised in strict conformity with the delegating

enactment -- the MLUL.” Nuckel v. Borough of Little Ferry

Planning Bd.,
208 N.J. 95, 101 (2011).

Pursuant to its delegated power, the Township incorporated

into its Ordinance a set of requirements for development

applications in Chapter 112, Article XXIII, Section 192. That

section contains a detailed checklist and description of each

application requirement for agency review. We will review those

requirements later.

For the purposes of the legal question posed by Dunbar,

however, it is sufficient that a checklist of application

components are provided by the Ordinance. That list is

anticipated in, and incorporated by, the MLUL definition of

“application for development” in
N.J.S.A. 40:55D-3 and, by

18
extension, the TOA Rule of
N.J.S.A. 40:55D-10.5. Thus, to

benefit from the protections of the TOA Rule, an application for

development in Franklin Township must contain the required

information and documents listed in Chapter 112, Article XXIII,

Section 192 of the Township Ordinance.

That clear, easily applied, and objective standard advances

the MLUL’s goal of statewide consistency and uniformity in land

use decisions. See Amerada Hess Corp. v. Burlington Cty.

Planning Bd.,
195 N.J. 616, 630 (2008); Rumson Estates,
177 N.J.

at 349. 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 trial court outlined a standard for requiring

“enough information . . . so that at least the [T]ownship can

get . . . started on engaging a meaningful review” and concluded

that the Board’s rejection of the application was arbitrary and

capricious because the Township was able to “functionally begin

a review” on the date of the application’s submission. We agree

with the Appellate Division that the trial court’s standard is

“fatally imprecise” and inconsistent with “the Legislature’s

intent that the MLUL 'bring consistency, statewide uniformity,

and predictability to the approval process.’” Dunbar Homes,

Inc.,
448 N.J. Super. at 602 (quoting N.Y. SMSA Ltd. P’ship v.

19
Twp. Council of Edison,
382 N.J. Super. 541, 550 (App. Div.

2006)).

Nonetheless, we note some important practical limits to

Board determinations based on 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 additional information not specified in the

ordinance or any revisions in the accompanying documents.”

N.J.S.A. 40:55D-10.3. Further, in the event information

required by local ordinance is not pertinent, the applicant may

request a waiver as to that information or those documents it

finds extraneous. Ibid. 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, then the application will be deemed

complete. If the Board denies the waiver, its decision will be

subject to review under the customary “arbitrary and capricious

or unreasonable” standard. Grabowsky,
221 N.J. at 551.

Dunbar argues that an application for development should

not need to contain all of the materials identified in Chapter

112, Article XXIII, Section 192, because those are the materials

that comprise a “complete application for development,” as

indicated in Chapter 112, Article I, Section 4 of the Ordinance,

20
and the TOA Rule does not require that the application be

“complete.” That argument is not persuasive.

N.J.S.A. 40:55D-3 does not distinguish between an

“application for development” and a “complete application for

development.” The MLUL does contain a “completeness provision,”

N.J.S.A. 40:55D-10.3, which provides that an application shall

be deemed complete forty-five days from its submission unless

any required items are missing. The fact that the completeness

provision contemplates the submission of an incomplete

application that would not start the clock on the forty-five-day

period does not mean that the initial, incomplete application

can trigger the TOA Rule. Although the TOA Rule does not use

the word “complete,” it explicitly cross-references the local

ordinance provisions that list application requirements. In

short, the completeness provision has no bearing on whether an

application receives the protection of the TOA Rule.

Having determined that, to be protected by the TOA Rule,

applicants must submit precisely what
N.J.S.A. 40:55D-3 requires

-- “the application form and all accompanying documents required

by ordinance for approval of a . . . site plan, . . .

conditional use, zoning variance or direction of the issuance of

a permit” -- we now consider whether the Board’s decision that

Dunbar’s application was not entitled to the protection of the

21
TOA Rule and that Dunbar would have to complete a more stringent

(d)(1) variance application was “arbitrary and capricious or

unreasonable.” Grabowsky,
221 N.J. at 551.

The Township’s relevant Ordinance provisions list the

information and materials required for site plan and variance

applications. Franklin Township, N.J., Code c. 112, art. XXIII,

§ 192 (2016). The materials required for use variance

applications are set forth in Franklin Township, N.J., Code c.

112, art. XXXVI, § 300 (2016). Applicants are also required to

submit an application fee. Franklin Township, N.J., Code c.

112, schedule 7 (2013).

It is undisputed that Dunbar’s submission lacked the

following items mandated by the Ordinance for site plan

approval: (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; and (7) four

additional copies of the site plan application.

It is also undisputed that Dunbar’s submission lacked the

following Ordinance requirements for a use variance application:

(1) drainage calculations; (2) a site plan indicating domestic

22
water demand and the amount of effluent; (3) a submittal letter

to the Department of Transportation; and (4) four additional

copies of site plan and architectural documents. Schedule 7 of

the Ordinance also requires payment of additional fees with a

use variance application.

Dunbar argues that the Township has conflicting application

requirements because, in addition to the Ordinance requirements

for site plan and variance applications, it lists requirements

for a bifurcated submission, or “an application . . . where the

applicant has elected to submit a separate application for any

required approval of subdivision, site plan or condition use.”

Franklin Township, N.J., Code c. 112, art. XXXVI, § 300 (2016).

The record suggests, however, that Dunbar submitted a single

site plan and use variance application. Further, it is

undisputed that, whether Dunbar submitted a single application

for site plan approval with a use variance or separate

applications for site plan approval and for a use variance,

Dunbar failed to include materials required by the Ordinance.

It is inconceivable that Dunbar’s confusion about which

Ordinance provision applied resulted in its failure to comply

with either.

N.J.S.A. 40:55D-3 calls for submission of “the application

form and all accompanying documents required by ordinance.” The

Township’s zoning officer properly determined that Dunbar’s

23
application did not include “all accompanying documents required

by ordinance” and was, therefore, “incomplete.” Because the

application was incomplete and no waiver was sought, Dunbar’s

application could not benefit from the TOA Rule. Rather,

Dunbar’s application was properly subjected to the (d)(1)

variance requirement. Hence, the decision of the Board to

uphold the Township zoning officer’s determination was not

“arbitrary and capricious or unreasonable.”

For the reasons set forth above, we affirm the judgment of

the Appellate Division.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON’s
opinion.

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