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

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Plaintiff Dunbar Homes, Inc., (Dunbar) owns a 276-unit garden apartment complex in the General Business Zone (GB-Zone) of Franklin Township (Township). Dunbar sought approval to develop an additional fifty-five garden apartments, which at that time were a permitted conditional use in the GB-Zone. As such, construction of the additional apartments required submission of an application for site plan approval and a “conditional use special reasons” variance pursuant to N.J.S.A. 40:55D-70(d)(3) ((d)(3) variance). On May 28, 2013, the Township introduced and scheduled a public hearing for an ordinance that eliminated garden apartments as a permitted conditional use in the GB-Zone. The Township adopted the new ordinance on July 16, 2013, and it became effective on August 5, 2013. Eighteen days before it adopted its new ordinance, the Township advised Dunbar of the potential GB-Zone change. The day before the Township adopted its new ordinance, Dunbar submitted an application to the Planning Board for site plan approval and a (d)(3) variance. Two days after the Township’s new zoning ordinance eliminated garden apartments as a conditional use in the GB-Zone, a Township zoning officer emailed Dunbar to indicate that its application was incomplete under the Township’s Zoning and Subdivision Ordinance (Ordinance). The zoning officer provided a list of items “needed for completeness” and instructed Dunbar it would need to apply for a “restricted use special reasons” variance under N.J.S.A. 40:55D-70(d)(1) ((d)(1) variance) Since a (d)(3) variance need not meet the stringent standards required for a (d)(1) variance, approval of a (d)(1) variance was less likely. Dunbar appealed the Township’s decision to the Zoning Board of Adjustment (Board), arguing that the application was “complete” upon submission and was therefore protected by the TOA Rule. Dunbar filed a complaint, asserting that the Board’s decision was arbitrary and capricious or unreasonable. The trial court agreed and reversed the Board, concluding that “there was enough submitted to functionally begin a review” of Dunbar’s application. Thus, the court found that Dunbar was protected by the TOA Rule and could therefore pursue a (d)(3) variance. The Township appealed the trial court’s decision and the Appellate Division reversed. The New Jersey Supreme Court affirmed the appellate court: "the plain language of the MLUL defines an 'application for development' as 'the application form and all accompanying documents required by ordinance.' Because Dunbar’s application lacked many of the documents required by the Ordinance, the application was not complete upon submission and does not benefit from the TOA Rule." View "DunbarHomes, Inc. v. Zoning Board of Adjustment of Franklin Township" on Justia Law