NOT FOR PUBLICATION WITHOUT THE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. L545-14.

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, 2017
A-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. 40:55D10.5 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. 40:55D10.5 was to protect landowners and developers from the inequity 

that occurred when application and approval efforts and expenses 
A-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 "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 
A-3637-14T1

4

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).]
A-3637-14T1

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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 
A-3637-14T1

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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.
A-3637-14T1

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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 
A-3637-14T1

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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
A-3637-14T1

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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
A-3637-14T1

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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 
A-3637-14T1

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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. 40:55D70(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."
A-3637-14T1

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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.
A-3637-14T1

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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 
A-3637-14T1

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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 
A-3637-14T1

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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 
A-3637-14T1

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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.
A-3637-14T1

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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 
A-3637-14T1

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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"). 
A-3637-14T1

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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 
A-3637-14T1

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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).
A-3637-14T1

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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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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 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 decisionmaking 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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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 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 
A-3637-14T1

25

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. 
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; 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. 
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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.
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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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30

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.