                 NOT FOR PUBLICATION WITHOUT THE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

                                 2
                                                            A-3637-14T1
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


                                 3
                                                           A-3637-14T1
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).]


                                 4
                                                            A-3637-14T1
      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


                                     5
                                                                   A-3637-14T1
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.
                                 6
                                                             A-3637-14T1
          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
                                                           A-3637-14T1
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



                                  8
                                                           A-3637-14T1
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




                            9
                                                           A-3637-14T1
      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


                                    10
                                                                    A-3637-14T1
        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."
                                       11
                                                                    A-3637-14T1
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.


                                            12
                                                                                       A-3637-14T1
       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


                                         13
                                                                      A-3637-14T1
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


                                   14
                                                                A-3637-14T1
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


                                    15
                                                                   A-3637-14T1
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.


                                       16
                                                                        A-3637-14T1
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.


                                          17
                                                                                A-3637-14T1
       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


                                      18
                                                                        A-3637-14T1
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").


                                    19
                                                                A-3637-14T1
"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


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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).


                                      21
                                                                   A-3637-14T1
     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




                                     22
                                                                    A-3637-14T1
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).


                                23
                                                           A-3637-14T1
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


                                          24
                                                                           A-3637-14T1
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.


                                       25
                                                                           A-3637-14T1
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
                                                                          A-3637-14T1
     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


                                     27
                                                                  A-3637-14T1
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
                                                                A-3637-14T1
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


                                  29
                                                               A-3637-14T1
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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                                                          A-3637-14T1
