On June 20, 2018, the NJ Supreme Court affirmed the Appellate Division’s judgement that Dunbar Homes Inc. was not protected by the Time of Application (TOA) Rule and Franklin Township’s Board of Adjustment had not acted arbitrarily, capriciously or unreasonably. The Court explained an “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. The Court also stated: “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.” The Court determined that Dunbar’s application did not include “all accompanying documents required by ordinance” and was, therefore, “incomplete.” Further, “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.”

On behalf of NJBA, NAIOP and the ICSC, Meryl A.G. Gonchar, Esq. (NJBA Patron Sponsor and MXD Counsel Sills Cummis & Gross P.C.) participated in oral arguments as amici curiae in support of Plaintiff-Petitioner, Dunbar Homes, Inc. NJBA greatly appreciates the representation by NJBA’s General Counsel Robert Washburn, Esq. (NJBA Master Sponsor Flaster Greenberg) and Ms. Gonchar.

Please click here to read a copy of the decision.