Dunbar Homes, Inc. v. the Zoning Board of Adjustment

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3637-14T1

DUNBAR HOMES, INC.,

Plaintiff-Respondent/
Cross-Appellant, APPROVED FOR PUBLICATION

v. February 14, 2017

THE ZONING BOARD OF APPELLATE DIVISION
ADJUSTMENT OF THE
TOWNSHIP OF FRANKLIN,

Defendant-Respondent/
Cross-Appellant,

and

TOWNSHIP OF FRANKLIN,

Defendant-Appellant/
Cross-Respondent.
_______________________________________

Submitted June 7, 2016 – Decided February 14, 2017

Before Judges Espinosa, Rothstadt and Currier.

On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Docket No. L-
545-14.

Rainone Coughlin Minchello, LLC, attorneys for
appellant/cross-respondent (Louis N. Rainone,
of counsel; Jason D. Attwood, on the brief).

Kelso & Bradshaw, attorneys for respondent/
cross-appellant Zoning Board of Adjustment of
the Township of Franklin, join in the brief
of appellant/cross-respondent.
 Hutt & Shimanowitz, P.C., attorneys for
respondent/cross-appellant Dunbar Homes, Inc.
(Ronald L. Shimanowitz, of counsel; Bryan D.
Plocker, on the brief).

The opinion of the court was delivered by

ESPINOSA, J.A.D.

The "time of application rule" embodied in N.J.S.A. 40:55D-

10.5 provides that regulations in effect "on the date of submission

of an application for development" govern the review of that

application. This marked a decisive shift from the "time of

decision rule" previously applied by our courts, in which a land

use decision was "based on the municipal ordinance as it existed

at the time the application or appeal was being decided." Jai Sai

Ram, LLC v. Planning/Zoning Bd. of the Borough of S. Toms River &

Wawa, Inc., 446 N.J. Super. 338, 343 (App. Div.), certif. denied,

____ N.J. ____ (2016). Under the time of decision rule, a

municipality was free to change its zoning ordinance during the

pendency of a site plan application "even if the ordinance is

amended in direct response to a particular application . . . as

long as the amendment is consistent with the Municipal Land Use

Law (MLUL)," N.J.S.A. 40:55D-1 to -163. Manalapan Realty, L.P.

v. Twp. Comm. of the Twp. of Manalapan, 140 N.J. 366, 378-79

(1995). The stated purpose for the enactment of N.J.S.A. 40:55D-

10.5 was to protect landowners and developers from the inequity

that occurred when application and approval efforts and expenses

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were rendered futile by subsequent changes to the ordinance. See

Jai Sai Ram, supra, 446 N.J. Super. at 343-44 (quoting Assemb.

437, 214th Leg., Req. Sess: (N.J. 2010) (Sponsor's Statement).

This appeal presents a question of first impression: when is

a submission to the planning board an "application for development"

that triggers the time of application rule. Defendants Township

of Franklin and the Zoning Board of Adjustment (collectively, the

Township) argue the time of application statute does not apply

until the application for development is complete. Conversely,

plaintiff Dunbar Homes, Inc. (Dunbar) argues "the submission of a

substantial, bona-fide application which does not constitute a

sham, and one which gives the Township sufficient notice of the

application and an understanding of the development being proposed

by the applicant, is sufficient" for the protection of the time

of application statute. We conclude that, although the submission

need not be "deemed complete" pursuant to N.J.S.A. 40:55D-10.3,

the plain language of relevant provisions of the MLUL requires a

submission to include the "application form and all accompanying

documents required by ordinance for approval" for the time of

application rule to apply. N.J.S.A. 40:55D-3.

Dunbar owns an existing garden apartment complex with 276

units in the Township's General Business (GB) zone. Dunbar also

owns 6.93 acres adjacent to this complex and planned to seek

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approval for fifty-five additional apartments on that property.

Without any change in the ordinance, Dunbar was required to seek

a conditional use variance pursuant to N.J.S.A. 40:55D-70(d)(3)

because the size of the property was less than the minimum ten

acres required for garden apartments as a conditional use in that

zone. What is at stake here is whether the (d)(3) variance still

applies or whether plaintiff must satisfy the conditions for a

(d)(1) variance, N.J.S.A. 40:55D-70(d)(1), as a result of a change

in the ordinance that eliminated garden apartments as a conditional

use in that zone.

I.

We begin with a review of the applicable statutory and

ordinance provisions.

N.J.S.A. 40:55D-10.5 establishes the time of application

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.

[(Emphasis added).]

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 The triggering event for this statute is the submission of

an application for development, which is defined in N.J.S.A.

40:55D-3 as:

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 . . . .

[(Emphasis added).]

In pertinent part, the definition of "application for

development" in the Zoning and Subdivision Ordinance of the

Township of Franklin, (the Ordinance), Franklin Township, N.J.,

Code ch. 112, art. I, § 4 (2016); tracks the MLUL definition:

An application form completed as specified by
this chapter and the rules and regulations of
the board or agency before which the
application is to be presented and all
accompanying documents, information and fees
required by ordinance for approval of the
application for development, including where
applicable, but not limited to, a site
plan, . . . D Variance (use variance) . . .

[(Emphasis added).]

The Ordinance then proceeds to include language similar to a

different provision of the MLUL, N.J.S.A. 40:55D-10.3,1 to define

1
N.J.S.A. 40:55D-10.3 provides:

An application for development shall be
complete for purposes of commencing the
applicable time period for action by a
municipal agency, when so certified by the

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when an application is "complete" for an explicit purpose, i.e.,

when "the time period for action by a municipal agency" commences:

[T]he board or agency may require such
additional information not specified in this
chapter, or any revisions in the accompanying
documents, as are reasonably necessary to make

municipal agency or its authorized committee
or designee. In the event that the agency,
committee or designee does not certify the
application to be complete within 45 days of
the date of its submission, the application
shall be deemed complete upon the expiration
of the 45-day period for purposes of
commencing the applicable time period, unless:
a. the application lacks information indicated
on a checklist adopted by ordinance and
provided to the applicant; and b. the
municipal agency or its authorized committee
or designee has notified the applicant, in
writing, of the deficiencies in the
application within 45 days of submission of
the application. The applicant may request
that one or more of the submission
requirements be waived, in which event the
agency or its authorized committee shall grant
or deny the request within 45 days. Nothing
herein shall be construed as diminishing the
applicant's obligation to prove in the
application process that he is entitled to
approval of the application. The municipal
agency may subsequently require 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, as are
reasonably necessary to make an informed
decision as to whether the requirements
necessary for approval of the application for
development have been met. The application
shall not be deemed incomplete for lack of any
such additional information or any revisions
in the accompanying documents so required by
the municipal agency.
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 an informed decision as to whether the
requirements necessary for approval of the
application for development have been met.
The application shall not be deemed incomplete
for lack of such additional information or any
revisions in the accompanying documents so
required by the municipal board or agency. An
application shall be certified as complete
immediately upon the meeting of all
requirements specified in the ordinance and
in the rules and regulations of the municipal
board or agency, and shall be deemed complete
as of the day it is so certified by the
administrative officer for purposes of the
commencement of the time period for action by
the municipal agency.

[Franklin Township, N.J., Code ch. 112, art.
I, § 4 (2016). (Emphasis added).]

The corresponding MLUL provision is unrelated to the time of

application statute. N.J.S.A. 40:55D-10.3 was enacted to require

a municipal agency "to determine the completeness of applications

and to pass upon the merits of the various requests made within

specific time periods." Allied Realty v. Upper Saddle River, 221

N.J. Super. 407, 417 (App. Div. 1987) (emphasis added), certif.

denied, 110 N.J. 304 (1988). Once the application is deemed

complete pursuant to this statute, the time period for action by

the municipal agency begins to run, and, if that period ends

without action taken, the application is subject to automatic

statutory approval. See, e.g., N.J.S.A. 40:55D-48(c) (automatic

statutory preliminary approval); N.J.S.A. 40:55D-73 (automatic

7
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statutory approval of application for development to the board of

adjustment).

II.

On May 28, 2013, the Township introduced Franklin Township,

N.J., Ordinance 4021-13, (July 16, 2013) to amend Schedule I of

the Ordinance, to delete "garden apartment developments" from

permitted conditional uses in the GB zone. The amending ordinance

was adopted on July 16, 2013 and became effective August 5, 2013.

On the day before the amendment to the Ordinance was adopted,

Dunbar filed a submission with the Planning Board seeking site

plan approval and a (d)(3) conditional use variance for its

proposed garden apartment project in the GB zone. The requirements

applicable to Dunbar's application for site plan approval are set

forth in § 112-192 of the Ordinance. Franklin Township, N.J.,

Code ch. 112, art. XXIII, § 192 (2016). Section 112-300 identifies

the "information and documents" required for an application for

any (d) variance. Franklin Township, N.J., Code ch. 112, art.

XXXVI, § 300 (2016). Schedule 7 to the Ordinance establishes the

schedule of fees for each type of application. Franklin Township,

N.J., Code ch. 112, schedule 7 (2013).

Dunbar's submission included:

1. Original and 20 copies of Application for
Site Plan Approval

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2. Original and 20 copies of Application for Use
Variance

3. Original and one copy of Site Plan Checklist

4. Original and one copy of Use Variance
Checklist

5. Check for $1,750.00 (Site Plan Application
Fee)

6. Check for $625.00 (Use Variance Application
Fee)

7. Check for $8,000 (Escrow Fee)

8. Twenty (20) sets of site plans

9. Twenty (20) sets of architectural plans

10. Three copies of Engineer's Report

11. Fifteen copies of Traffic Report

12. Fifteen copies of Environmental Impact
Statement

13. Three copies of Somerset County Application,
Checklist and transmittal letter dated July
15, 2013

14. Three copies of Somerset Union Soil
Conservation District Application and
transmittal letter dated July 15, 2013

15. Original and three copies of W-9 Form for
[Dunbar]

16. Twenty (20) copies of certification of No
Taxes Due

17. Twenty (20) copies of Disclosure of Ownership
for Dunbar

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 18. Twenty (20) copies of D & R Canal Commission
Application and transmittal letter dated
July 15, 2013.

In an email dated August 7, 2013, the day after the amendment

to Schedule 1 to the Ordinance became effective, Senior Zoning

Officer Vincent Dominach identified items "needed for

completeness" of Dunbar's application. Three of the items

identified by Dominach were necessary to satisfy the requirements

established by § 112-300 of the Ordinance for an application for

any (d) variance: "[f]our additional copies of the site plan

application, use variance application, site plans set and

architectural set," "3 copies of the drainage calculations," and

"[c]opy of submittal letter to [Department of Transportation]."

Dominach also identified items required by § 112-192 of the

Ordinance for an application for site plan approval:

1. The key map must show zoning boundaries

2. The location map must show the zoning of all
properties within 200 ft of the subject
property

3. Copy of sealed survey of the subject property

4. Site plan must provide datum to which contour
elevations refer

5. Site plan must indicate anticipated domestic
water demand and amount of septic effluent

6. Site plan must indicate methods and placement
of solid waste disposal facilities and
screening thereof

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 7. Site plan must show existing and proposed
topography.

Dominach also identified "W-9 form (filled out completely)" and

additional fees2 required by Schedule 7 of the Ordinance. Dominach

advised further that, pursuant to the newly adopted ordinance,

Dunbar was now required to seek a (d)(1) variance, N.J.S.A. 40:55D-

70(d)(1), and not a (d)(3) variance because garden apartments were

no longer permitted in the GB zone.

In its notice of appeal to the Zoning Board of Adjustment

(the Board), Dunbar did not contend Dominach had erred by

identifying items that were not required for the (d)(3) variance

and site plan approval it sought. Instead, Dunbar argued only

that because it submitted its application before the effective

date of the amendment to the ordinance, only a (d)(3) variance was

required.

After Dunbar submitted additional materials, Dominach advised

the Board that Dunbar's "submittal met the definition of

'Application for Development'" and was "complete" as of October

29, 2013.

At the public hearing before the Board, the Township argued

that, pursuant to § 112-4 of the Ordinance, an application for

2
The additional fees required were identified as "$4,125 ($75
per dwelling unit) if applying for preliminary approval only" and
"$4,125 plus $750 (final fee) plus $2,200 ($40 per dwelling unit)"
if Dunbar was "applying for preliminary and final approval."
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development had to be "complete" for the time of application

statute to apply. Dunbar presented expert testimony from John

Chadwick, a professional planner, and Robert Washburn, a law

professor with expertise in land use law.

Chadwick opined that, although Dunbar's July 15 submission

failed to constitute a "complete" application for development

under the Township's interpretation of § 112-4 of the Ordinance,

it qualified as an application under the MLUL. Chadwick added

that the inclusion of completeness to the definition of

"application for development" in the Ordinance undermined the

purpose of the time of application rule.

Washburn testified that the Legislature made an "application

for development," and "not a complete application for

development," the trigger for protection under the statute. He

opined the time of application rule is "not subject to

interpretation or modification by ordinance." He further

explained that, due to the multiplicity of "extremely extensive

completeness checklist[s]" in various municipalities, a

completeness requirement would frustrate the purpose of the

statute. He concluded § 112-4's definition of "application for

development" was "invalid" because it differs from the MLUL

definition of application for development and appeared to require

a finding of completeness by the Township.

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 The Board affirmed Dominach's decision by unanimous vote and

adopted a resolution memorializing its approval of Dominach's

determination that Dunbar's submission was not an application for

development until October 29, 2013. As a result, Dunbar was

required to obtain a (d)(1) use variance to comply with the

ordinance as amended, effective August 5, 2013.

In its resolution, the Board relied upon Rumson Estates, Inc.

v. Mayor & Council of Fair Haven, 177 N.J. 338 (2003), to support

its conclusion that the MLUL did not preclude the Township from

adopting a zoning ordinance that defined "application for

development" differently from the definition in the MLUL because

the MLUL definition was not a mandatory term. The Board stated

it was "bound to apply the definition of an application for

development" in the Ordinance, but that even under the MLUL

definition, N.J.S.A. 40:55D-3, "Dunbar did not submit the required

material until October 29, 2013."

Dunbar filed a complaint in lieu of prerogative writ against

the Board and the Township. Following oral argument, the trial

judge reversed the Board's resolution.

The trial judge found § 112-4 of the Ordinance did not require

completeness for a submission to qualify as an application for

development; that the Ordinance was consistent with the MLUL and

that "the Board improperly interpreted its own ordinance as

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requiring completeness." As a result, he concluded the Ordinance

was not "arbitrary, capricious and unreasonable, or . . . null and

void."

Despite his finding that a "complete application for

development" was not required for the time of application statute

to apply, the trial judge determined that the time of application

statute and N.J.S.A. 40:55D-10.3 should be read in tandem. The

judge reasoned that N.J.S.A. 40:55D-10.3 required the Township to

adopt an ordinance establishing checklists. He found the Township

had not done so and concluded some other means was needed to

determine if a submission was sufficiently complete to satisfy the

definition of an application for development. Recognizing the

need to exclude "sham applications" and "applications that are

half blank," the judge concluded the time of application rule

should apply if "the applicant provide[s] enough information . . .

so that a meaningful review of the application can commence . . .

so that at least the township can get . . . started on engaging a

meaningful review."

The court then reviewed each of the documents submitted by

Dunbar in July 2013 to determine their sufficiency and concluded

"there was enough submitted to functionally begin a review" of

Dunbar's submission on July 15, 2013. The judge entered an order

that reversed the Board's denial of Dunbar's "right to proceed

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under the prior conditional use provisions for Garden Apartments."

The Township's motion for reconsideration was denied.

The Township appeals from the trial court's reversal of the

Board's resolution. The Township argues the trial court erred in

applying the time of application rule to a submission that failed

to include all documents required by municipal ordinance. The

Township argues further that the trial court erred in imposing the

checklist requirements of N.J.S.A. 40:55D-10.3 upon the definition

of "application for development" and in concluding that the

Ordinance did not contain such a checklist. In its cross-appeal,

Dunbar argues the trial court's decision that the Board's action

was arbitrary, capricious or unreasonable should be affirmed; that

the time of application statute does not require an application

for development to be deemed complete; and that the Ordinance's

definition of "application for development" is invalid and ultra

vires because its effect is to eviscerate a mandatory provision

of the MLUL. We conclude the Board's decision that the time of

application statute was not triggered here was not arbitrary,

capricious or unreasonable, albeit for reasons different from

those relied upon by the Board.

III.

In reviewing a local zoning decision, we "determine whether

the Board followed statutory guidelines and properly exercised its

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discretion." CBS Outdoor, Inc. v. Borough of Lebanon Planning

Bd./Bd. of Adjustment, 414 N.J. Super. 563, 578 (App. Div. 2010).

The zoning board's determination will be set aside "only when it

is arbitrary, capricious or unreasonable," Kramer v. Bd. of

Adjustment, Sea Girt, 45 N.J. 268, 296 (1965), and will not be

disturbed in the absence of a "clear abuse of discretion." CBS,

supra, 414 N.J. Super. at 577 (quoting Kramer, supra, 45 N.J. at

296-97). The same standard of review applies to our review of a

trial court's decision on appeal from such a determination. See

D. Lobi Enters. v. Planning/Zoning Bd. of Borough of Sea Bright,

408 N.J. Super. 345, 360 (App. Div. 2009); N.Y. SMSA, L.P. v. Bd.

of Adjustment of Twp. of Weehawken, 370 N.J. Super. 319, 331 (App.

Div. 2004).

"Although a municipality's informal interpretation of an

ordinance is entitled to deference . . . the meaning of an

ordinance's language is a question of law that we review de novo."

Bubis v. Kassin, 184 N.J. 612, 627 (2005). Similarly, the trial

judge's determination as to the meaning of the ordinance is not

entitled to any deference in our analysis. Mountain Hill, L.L.C.

v. Zoning Bd. of Adjustment of Twp. of Middletown, 403 N.J. Super.

210, 234 (App. Div. 2008), certif. denied, 197 N.J. 475 (2009).

When interpreting a statute, the goal "is to ascertain and

effectuate the Legislature's intent." Cashin v. Bello, 223 N.J.

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328, 335 (2015). When the plain language of a statute is clear

on its face, "the sole function of the courts is to enforce it

according to its terms." Ibid. (citation omitted). If the statute

"'is subject to varying plausible interpretations,' or when

literal interpretation of the statute would lead to a result that

is inherently absurd or at odds with either public policy or the

overarching statutory scheme of which it is a part," we "may

consider extrinsic sources, including 'legislative history,

committee reports, and contemporaneous construction.'" Id. at

335-36 (citation omitted).

IV.

The protection afforded by N.J.S.A. 40:55D-10.5 is triggered

by the "submission of an application for development." It is

beyond cavil that a submission for an "application for development"

as used in N.J.S.A. 40:55D-10.5 need not be a "complete"

application.

On its face, the statute does not require a "complete"

application, a fact confirmed by the MLUL's definition of

"application for development," N.J.S.A. 40:55D-3. Even if it were

necessary to explore extrinsic evidence to interpret this

language, the legislative history offers compelling evidence that

the Legislature considered and rejected requiring a complete

application for the time of application statute to apply.

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 As originally proposed, N.J.S.A. 40:55D-10.5 stated:

Notwithstanding any provision of law to the
contrary, whenever an application for
development fully conforms with the
development regulations which are in effect
at the time that an application for
development is deemed complete, those
development regulations shall govern review of
that application."

[S. 2118, 211th Leg. (N.J. 2004) (emphasis
added).]

The proposed language in the 2005-06, 2008-09 and 2009-10

Legislative sessions removed "deemed complete," and instead used

language identical to the provision adopted in 2010. See S. 457,

212th Leg. (N.J. 2006); S. 58, 213th Leg. (N.J. 2008); S. 82,

214th Leg. (N.J. 2010).

This omission stands in contrast to other provisions of the

MLUL in which the Legislature elected to modify the term

"application for development" with "complete" and "deemed

complete." See e.g., N.J.S.A. 40:55D-10.3; N.J.S.A. 40:55D-73

(time period in which a Board of Adjustment must render a decision

begins to run with "the submission of a complete application for

development") (emphasis added); N.J.S.A. 40:55D-110 (applications

for development to the historic preservation commission will not

be transferred until "deemed complete") (emphasis added). This

presents an instance where "the Legislature expressly include[d]

a requirement in one subsection and exclude[d] that same

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requirement in other subsections of the same general statute," and

so, "complete" should not be implied in N.J.S.A. 40:55D-10.5. In

re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 492 (2004)

(citing Higgins v. Pascack Valley Hosp., 158 N.J. 404, 419 (1999)).

V.

Notwithstanding the clear import of the MLUL definition of

"application for development" in this context, the Township argues

that the MLUL definition is not mandatory and that the Ordinance

requires a "complete" application for development. We disagree

with each of these arguments.

A.

The authority of a public entity to plan and zone is a

delegation of the police power vested in the Legislature by the

New Jersey Constitution. Griepenburg v. Twp. of Ocean, 220 N.J.

239, 252 (2015) (citing N.J. Const. art. 4, § 6, ¶ 2). "The MLUL

was intended to simplify, expedite and standardize procedures for

approval by local boards, limit the potential for harassment of

applicants, and bring consistency, statewide uniformity, and

predictability to the approval process." N.Y. SMSA, supra, 382

N.J. Super. at 550; see also Rumson Estates, supra, 177 N.J. at

349 (describing the MLUL as "a comprehensive statute that allows

municipalities to adopt ordinances to regulate land

development . . . using uniform and efficient procedures").

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"Because 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). See also Riggs v.

Twp. of Long Beach, 109 N.J. 601, 610 (1988) ("Municipalities do

not possess the inherent power to zone, and they possess that

power, which is an exercise of the police power, only insofar as

it is delegated to them by the Legislature.").

N.J.S.A. 40:55D-3 provides definitions that apply "[f]or the

purposes of this act, unless the context clearly indicates a

different meaning." "In other words, when a defined term is used

in the MLUL, it will have a specified meaning." Rumson Estates,

supra, 177 N.J. at 354.

The Township's reliance upon Rumson Estates to support its

argument that it may alter the definition of "application of

development" is misplaced. As to whether an MLUL definition set

forth in N.J.S.A. 40:55D-3 to -7, is mandatory, the Court stated,

"The term 'shall' indicates a 'mandatory requirement' and the term

'may' indicates a 'permissive action.'" Id. at 352. Thus, in

considering whether an ordinance that altered the MLUL definition

of "lot" and "floor area ratio" was valid, the Court found the

alteration authorized by the MLUL, citing N.J.S.A. 40:55D-65(b)

("A zoning ordinance may . . . specify floor area ratios and other

20
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ratios and regulatory techniques governing the intensity of land

use . . . .") (emphasis added). Id. at 351-52.

The interpretation of the Ordinance proposed by the Township

is not authorized by any "permissive" provision of the MLUL and

fails to advance any of the enumerated goals of the MLUL, N.J.S.A.

40:55D-2. See id. at 350 ("It is basic that every zoning ordinance

must advance one of those goals."). To the contrary, the potential

proliferation of disparate definitions of "application for

development" that differ from N.J.S.A. 40:55D-3 compromises the

ability of the MLUL to establish "uniform and efficient

procedures." Id. at 349.

We therefore hold that the MLUL definition for "application

for development," N.J.S.A. 40:55D-3, is mandatory in construing

the time of application rule.

B.

The Ordinance enjoys a presumption of validity. Rumson

Estates, supra, 177 N.J. at 350-51. Applying established rules

of statutory construction, Twp. of Pennsauken v. Schad, 160 N.J.

156, 170 (1999), we focus on the plain language of the statute and

use common sense "to effectuate the legislative purpose,"

Morristown Assocs. v. Grant Oil Co., 220 N.J. 360, 380 (2015); see

also In re J.S., 444 N.J. Super. 303, 308 (App. Div.), certif.

denied, 225 N.J. 339 (2016).

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 Having determined the MLUL's definition of "application for

development" is a mandatory term, we apply common sense to our

interpretation of the Ordinance and conclude that any ambiguity

in the Ordinance is merely a function of the fact that the

Ordinance seeks to implement two unrelated provisions of the MLUL.

The first part of the Ordinance definition tracks the language

of the MLUL definition for application of development. The

Ordinance then incorporates language to define when an application

is complete "for purposes of the commencement of the time period

for action by the municipal agency." Franklin Township, N.J. Code

ch. 112, art. I, § 4 (2016). This language codifies the standard

established in N.J.S.A. 40:55D-10.3, a statute designed to

implement an entirely different legislative objective.

Stated simply, while N.J.S.A. 40:55D-10.5 protects an

applicant from adverse action taken by a municipal agency after

an application is submitted, N.J.S.A. 40:55D-10.3 protects an

applicant from the municipal agency's inaction after the

application is submitted. N.J.S.A. 40:55D-10.3 does so by defining

when the clock starts ticking for automatic approval provisions.

See Allied Realty, supra, 221 N.J. Super. at 418 ("The evil which

the automatic approval provisions were designed to remedy was

municipal inaction and inattention."); Fallone Prop., supra, 369

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N.J. Super. at 569 ("The purpose of these time limits is to

expedite decision making on land use applications.").3

N.J.S.A. 40:55D-10.3 explicitly limits the application of the

"complete" standard to this purpose, stating, "[a]n application

for development shall be complete for purposes of commencing the

applicable time period for action by a municipal agency . . . ."

The Ordinance similarly states an application "shall be . . .

complete . . . for purposes of the commencement of the time period

for action by the municipal agency." Franklin Townshp, N.J., Code

ch. 112, art I, § 4 (2016). The language and objective served by

the time of application statute plainly fall outside the purpose

for defining the start of a time period that ends in the automatic

approval of an application.

Although the language relating to the two MLUL provisions is

included in one section of the Ordinance, viewing the two portions

as separate rather than interdependent effectuates the underlying

purpose for each without impairing the ability of either to

implement its purpose. On the other hand, an interpretation that

3
The importance of requiring an application be certified as
complete or deemed complete under N.J.S.A. 40:55D-10.3 is evident.
Since "[a]n incomplete application is not entitled to any
consideration on the merits," the automatic approval of an arguably
incomplete application would do nothing to expedite decision-
making but would needlessly preclude the municipal agency from
performing its function. Eastampton Ctr. LLC v. Planning Bd. of
Twp. of Eastampton, 354 N.J. Super. 171, 195-96 (App. Div. 2002).

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the language regarding a "complete" application modified the

definition of "application for development" would render the

Ordinance invalid as contrary to a mandatory MLUL definition.

Because we are charged to discern an interpretation that is

consistent with validity if possible, Manalapan Realty, supra, 140

N.J. at 385, we conclude the two sections of the Ordinance are

properly viewed as separate provisions that do not modify each

other. See also Franklin Township, N.J. Code ch. 1, art. IV, §

16 (2016) ("[T]he holding of any section or part thereof to

be . . . void or ineffective for any cause shall not be deemed to

affect the validity . . . of any other sections or parts

thereof.").

C.

The remaining issue is what standard a submission must meet

to constitute an "application for development" protected by the

time of application statute.

The trial judge proposed a standard that would be satisfied

when the applicant provided enough materials to allow the municipal

agency to "commence" a meaningful review. He then reviewed each

of the twelve deficiencies identified by Dominach to determine

whether they would have substantively impacted Dominach's review

of the submission. The court held: (1) twenty copies of the survey

was sufficient to facilitate review; (2) the $10,000 fee was

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sufficient to commence review despite the significant additional

fees that could attach; (3) the incomplete W-9 did not "seem to

be of any great consequence"; (4) the application included

sufficient data and information regarding drainage to "begin

review of what drainage might be . . . even though it couldn't be

completed necessarily"; (5) the key map and location map were

"technical details" that really would not affect review of an

application; (6) the effluent and solid waste disposal information

although not demarcated on the site plan was set forth in the

engineering report; and (7) the failure to forward the letter to

the Department of Transportation would not "seriously interfere

with . . . beginning the review of an application." The trial

court held that despite the deficiencies in Dunbar's application,

Dominach was able to "functionally begin a review" on the date of

submission.

We decline to adopt this approach.

A fundamental principle of land use law is that municipal

authorities are granted "wide latitude in the exercise of the

discretion" in recognition of "their peculiar knowledge of local

conditions." Burbridge v. Mine Hill, 117 N.J. 376, 385 (1990)

(citation omitted). The role of a reviewing court is to determine

whether the exercise of that discretion was valid or "arbitrary,

capricious or unreasonable." C.B.S. Outdoor, supra, 414 N.J.

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Super. at 577 (quoting Kramer, supra, 45 N.J. at 296). It is not

within the reviewing "court's mandate to substitute [its] judgment

for the proper exercise of the Board's discretion." Id. at 577-

78; see also Fallone Prop., supra, 369 N.J. Super. at 561 (citation

omitted) ("[A] reviewing court is not to 'suggest a decision that

may be better than the one made by the board of adjustment or

planning board, but to determine whether the board could reasonably

have reached its decision.'").

The task assumed by the trial judge here unjustifiably and

unnecessarily invaded the province of the municipal authority to

make the preliminary assessment as to whether the items required

by §§ 112-192 and -300 of the Ordinance for site plan approval and

a (d)(3) variance had been submitted in support of Dunbar's

application.4 Further, the standard he used for making that

determination, "enough information . . . so that at least the

township can get . . . started on engaging a meaningful review,"

is fatally imprecise. Such a standard has the capacity to

frustrate the Legislature's intent that the MLUL "bring

consistency, statewide uniformity, and predictability to the

approval process." N.Y. SMSA, supra, 382 N.J. Super. at 550.

4
In light of our decision that N.J.S.A. 40:55D-10.5 and N.J.S.A.
40:55D-10.3 are not to be read in tandem, we need not consider
whether §§ 112-192 and -300 of the Ordinance constitute
"checklists" under N.J.S.A. 40:55D-10.3.
26
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 In our view, N.J.S.A. 40:55D-3 provides sufficient guidance

for the determination whether a submission should be afforded the

protection of the time of application statute:

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 . . . .

[(Emphasis added).]

The documents that are necessary to satisfy this standard are

dictated by the nature of the application(s) sought and the

requirements for such application in effect at the time the

submission is made. For example, if an applicant sought a (d)(3)

variance as Dunbar did, the applicant was bound to submit all the

documents identified in the Ordinance that governed applications

for any (d) variance. Although the Ordinance reserved the right

of the board to require additional information, it is clear the

need for additional submissions would not prove fatal to the

submission as an "application for development." Even when an

application is required to be deemed complete for the purpose

identified in N.J.S.A. 40:55D-10.3, "[t]he application shall not

be deemed incomplete for lack of any such additional information

or any revisions in the accompanying documents so required by the

municipal agency." Ibid. The benchmark for determining whether

documents are required for the submission to constitute an

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application for development, N.J.S.A. 40:55D-3, is whether they

are specifically required by ordinance.

In the first instance, the responsible municipal official

determines whether the requirements of an ordinance have been

satisfied. This determination rests upon a quantitative rather

than a qualitative analysis. For example, in this case, documents

explicitly required by the Ordinance, such as a letter to the

Department of Transportation, and information similarly required,

such as "datum to which contour elevations refer" on the site plan

application, were missing from the application. Because any

requirement deemed unsatisfied must be specifically required by

ordinance, this affords applicants a measure of predictability and

precludes an adverse determination based upon frivolous

discrepancies.5 The municipal official's decision that the

5
See Cox & Koenig, N.J. Zoning & Land Use Administration, § 14-
1.1 at 292 (2016), providing examples of decisions that found
applications incomplete on frivolous grounds:

[A]pplications which were accompanied
by . . . a site plan or subdivision map as
required by the ordinance, would nevertheless
be found to be incomplete because the north
arrow was inadvertently omitted from the map,
because insufficient signature lines had been
provided or because the environmental impact
statement filed with the application was
deemed to be insufficient.

28
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submission falls short of an "application for development," as

defined in N.J.S.A. 40:55D-3, remains subject to review, using the

arbitrary, capricious or unreasonable standard.

Turning to the facts of this case, it is undisputed that

Dunbar's submission failed to include documents required by §§

112-192 and -300 of the Ordinance as well as a portion of the fees

that were required when it submitted its applications for site

plan approval and a (d)(3) variance. The determination that these

omissions constituted deficiencies required no subjective

evaluation of the contents of the documents submitted. It was,

therefore, not an abuse of discretion for Dominach to find the

application deficient.

Because we review judgments and not reasoning, Do-Wop Corp.

v. City of Rahway, 168 N.J. 191, 199 (2001), the fact that the

Board erred in concluding it was entitled to alter the MLUL's

definition of "application for development" and adopted a

definition that required completeness is not fatal to finding its

conclusion should be affirmed. It is undisputed that Dunbar's

July submission did not include all the documents required by

ordinance at the time it was filed. The documents necessary to

satisfy the MLUL definition of "application for development" were

not submitted until after the amendment to the Ordinance became

effective. Therefore, the Board's conclusion that Dunbar was not

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entitled to the benefit of the time of application statute was not

arbitrary, capricious or unreasonable and the trial court erred

in reversing that determination.

Reversed.

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