NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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,

v.
THE ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF FRANKLIN , Defendant
- Respondent / Cross - Appellant , and TOWNSHIP OF FRANKLIN, Defendant
- Appellant/ Cross - Respondent.

________________________________ _______ Submitted June 7, 2016

– Decided 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. APPROVED FOR PUBLICATION February 14, 2017

APPELLATE DIVISION

February 14, 2017A - 3637
- 14T1 2 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 wh ich 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 applicati on . . . as long as the amendment is consistent with th e 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 expensesA - 3637
- 14T1 3 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 " ap plication 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 seekA - 3637
- 14T1 4 approval for fifty

- five additional apartments on that property. Without any change in the ordinance, Dunbar w as required to seek a conditional use variance pursuant to N.J.S.A. 40:55 D - 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 eliminate d garden apartments as a conditional use in that zone.

I. We begin with a revi ew 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 a n 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 ad opted subsequent to the date of submission of an application for development, shall not be applicable to tha t application for development. [( E mphasis added).]A - 3637
- 14T1 5 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 direct ion of the issuance of a permit . . . . [(Emphasis added).] In pertinent part, t he 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 th en 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 theA - 3637
- 14T1 6 when an application is "complete" for a n 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 appl ication. 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 t o 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 accompan ying documents so required by the municipal agency.A - 3637
- 14T1 7 an informed decision as to whether the requirements necessary for approval of the applicati on 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 com plete 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
- 1 0.3 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. 1 987) (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 (automaticA - 3637
- 14T1 8 statutory approval of application for developm ent to the board of adjustment).

I I. 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 o rdinance was adopted on July 16, 2013 and became effective August 5, 2013 . On the day be fore the amendment to the O rdinance 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 documen ts " required for an application for
any (d) v ariance. 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 App lication for Site Plan ApprovalA - 3637
- 14T1 9 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 plan s 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 transmi ttal letter dated July 15, 2013
14. Three copies of Somerset Union Soil Conservation District Application and transmi ttal letter dated July 15, 2013
15. Original and three copies of W

- 9 Form for [Dunbar]
16. Twenty (20) copies o f certification of No Taxes Due
17. Twenty (20) copies of Disclosure of Ownership for DunbarA - 3637
- 14T1 10 18. Twenty (20) copies of D & R Canal Commission Application and transmi ttal letter dated July 15, 2013 . In an email dated August 7, 2013, the day a fter the amendment to Schedule 1 to the Ordinance became effective , Senior Z oning
O fficer Vincent Dominach identified items "needed for completeness" of Dunbar's application . Th re e of the items identified by Dominach were necessary to satisfy the requirements established by § 112

- 300 of the Ordinance for an application for

a ny (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 mu st 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 thereofA - 3637
- 14T1 11 7. Site plan must show existing and p roposed topography. Dominach also identified " W - 9 form (filled out completely) " and additional fees 2 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 f or 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 additio nal 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 applyin g for preliminary approval only" and

" $4,125 plus $750 (final fee) plus $2,200 ($40 per dwelling unit) " if Dunbar was "applying fo r preliminary and final approval."A - 3637
- 14T1 12 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 adde d
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 compl ete application for development , " the trigger for protection under the statute. He opined the time of application rule is "not subject to interpretati on or modification by ordinance. " He further explained that , due to the multiplicity of "extremely ex ten sive 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 .A - 3637
- 14T1 13 T he 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
dev elopment until October 29, 2013. A s 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 R umson Estates , Inc. v. Mayor & Council of Fair Haven , 177 N.J. 338 (2003) , to support its conclusion that the MLUL d id not preclude the Township from adopting a zoning ordinance that defined "application for development" differently from the definition in the M LUL 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 re quired 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 O rdinance was consistent with the MLUL and
that "the Board improperly interpreted its own ordinance asA - 3637
- 14T1 14 requiring completeness . " As a result, he conc luded the O rdinance
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 checklist s . 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 the ir sufficiency and concluded "there was enough submitted to functionally begin a review " of
Dunba r's submission o n July 15, 2013. The judge entered an order that reversed the Board's denial of Dunbar's "right to proc eedA - 3637
- 14T1 15 under the prior conditional use provisions for Garden Apartments . " The Township 's motion for reconsideration was denied.
The T ownship appeal s 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 furth er 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. W e 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 de cision , we "determine whether the Board followed statutory guidelines and properly exercised itsA - 3637
- 14T1 16 discretion." CBS Outdoor, Inc. v. Borough o f Lebanon Planning Bd./Bd. of Adjustment , 414 N.J. Super. 563, 57 8 (App. Div. 2010) . The zoning board's determination will be set aside " only when it is arbitr ary, 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 T w p. of Middletown , 403 N.J. Super. 210, 234 (App. Div. 2008) , certif. denied , 197 N.J. 475 (2009) . When interpreting a statute, t he goal "is to ascertain and effectuate the Legislature's intent." Cashin v. Bello , 223 N.J.A - 3637
- 14T1 17 328, 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). I f the statute

" ' is subject to varying plausible interpretations , ' or when literal interpretation of the statute would lead to a result that is inherently absurd o r 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
33 5
- 3 6 (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" applic ation. 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.A - 3637
- 14T1 18 As originally proposed, N.J.S.A. 40:55D
- 10.5 stated : Notwithstanding any pro vision 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 i n 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 "comp lete" 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 sameA - 3637
- 14T1 19 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

r e Freshwater Wetlands Prot. Act Rules , 180 N.J. 478, 492 (2004) (citing Higgins v. Pascack Valley Hos p. , 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. T w p . 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; s ee 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
develo pment . . . using uniform and efficient procedures").A - 3637
- 14T1 20 " 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 Plannin g 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 a pply "[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, t he Court found the alteration authorized by t he MLUL, citing N.J.S.A. 40:55D
- 65 (b) ("A zoning ordinance may . . . specify floor area ratios and otherA - 3637
- 14T1 21 rat i os 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 "pe rmissive" provision of the MLUL and fails to advance any of the enumerated goals of the MLUL, N.J.S.A.
40:55D
- 2. S ee 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 "unif orm and efficient procedures." Id. at 349.
We therefore ho ld 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 f ocus on the plain language of the statute and

use common sense " to eff ectuate the legislative purpose, " Morristown Assocs. v. Gran t Oil Co. , 220 N.J. 360, 380 ( 2015); s ee also In re J.S. , 444 N.J. Super. 303, 308 (App. Div.), certif. denied , 225 N.J. 339 (2016).A - 3637
- 14T1 22 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 conc lude that any ambiguity in the O rdinance is merely a function of the fact that the Ordinance seeks to implement two unrelated provisions of the MLUL. The first part of the O rdinance definition tracks the language

o f the MLUL definition for application of development . The
O rdinance 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. Cod e 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 i naction 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 Al lied Realty , supra , 221 N.J. Super. at 418 ("The evil which the automatic approval provisions were designed to remedy was municipal inaction and inattention."); Fal lone Prop . , supra , 369A - 3637
- 14T1 23 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 limit s the application of the "comp lete" standard to this purpose, stating, "[a] n appl ication for development shall be complete for purposes of commencing the applicable time period for action by a municipal agency . . . . " The O rdinance 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 e nds 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 e ach 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 consid eration 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 T w p. of Eastampton , 354 N.J. Super. 171, 195
- 96 (App. Div. 2002).A - 3637
- 14T1 24 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 separ ate provisions that do not modify each
other. See also Franklin Township, N.J. Code ch. 1, art . IV, § 16 (2016) ("[T] he holding of an y section or part thereof to
be . . . void or ineffective for any cause shall not be deemed to affect the validity . . . o f 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 re view of the submission. The court held: (1) twenty copies of the survey was sufficient to facilitate review ; (2) the $10,000 fee wasA - 3637
- 14T1 25 sufficient to commence review despite the significant addition al 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

com pleted necessarily" ; (5) the key map and location map were "technical details" that really would not affect re view of an application ; (6) the effluent and solid waste disposal information although not demarcated on the site plan was set forth i n the engine ering report; and (7 ) the failure to forward the letter to the Department of Transportation would not "seriously interfere with . . . beginning the review of an ap plication." The trial court held that despite the deficiencies in Dunbar's application, Domi nach was able to "functionally begin a rev iew" 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 recognitio n 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 unreaso nable." C. B. S . Outdoor , supra , 414 N.J.A - 3637
- 14T1 26 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 ; s ee 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 Ordi n ance 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. S uch 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 n eed not consider whether §§ 112
- 192 and
- 300 of the Ordinance constitute "checkli sts" under N.J.S.A. 40:55D
- 10.3.A - 3637
- 14T1 27 In our view, N.J.S.A. 40:55D
- 3 provide s 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 direct ion 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 wa s bound to submit all the
do cuments identified in the O rdinance that governed applications
for a ny (d) va riance. 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 anA - 3637
- 14T1 28 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 w hether the requirements of an o rdinance 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 co ntour elevati ons refer" on the s ite p lan 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 b ased 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 (201 6 ), 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 i mpact statement filed with the application was deemed to be insufficient.A - 3637
- 14T1 29 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 r equired by §§
112
- 192 and
- 300 of the Ordinance as we ll 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 docume nts submitted. It was, therefore, not an abuse of discretion for Dominach to find the

a pplication 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 concludi ng 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 includ e all the documents required by ordinance at the time it was filed . The documents necessary to satisfy th e MLUL definition of "application for development" were not submitted un til after the amendment to the O rdinance became effective. Therefore, the Boa rd's conclusion that Dunbar was notA - 3637
- 14T1 30 entitled to the benefit of the time of application statute was not arbitr ary, capricious or unreasonable and the trial court erred in reversing that determination.
Reversed.