Dunbar Homes, Inc. v. the Zoning Board of Adjustment ( 2017 )


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  •                  NOT FOR PUBLICATION WITHOUT THE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
    
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                                                                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).]
    
    
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                                                                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
    
    
    
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                                                               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
    
    
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                                                                       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
    
    
                                    20
                                                              A-3637-14T1
    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.
    
    
    
    
                                   30
                                                              A-3637-14T1