Do You Know What the “Time of The Application” Is? (Part 2 of a 2 Part Series)

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Zoning Attorney

Part 1 of this series discussed what the Time of Application rule is as well as a brief background. Part 2 will continue to expand on my last post.

In reviewing an appeal from a local zoning decision, an appellate court “determines whether the Board followed statutory guidelines and properly exercised its discretion.” The zoning board’s determination will be set aside “only when it is arbitrary, capricious or unreasonable,” and will not be disturbed in the absence of a “clear abuse of discretion.”

“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 the Courts review de novo.” Similarly, the trial judge’s determination as to the meaning of the ordinance is not entitled to any deference in an appellate analysis.

When interpreting a statute, the goal of the Court “is to ascertain and effectuate the Legislature’s intent.” 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.” 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,” the court “may consider extrinsic sources, including ‘legislative history, committee reports, and contemporaneous construction.’”

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 dispute, said the appellate court 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.

To discuss your NJ Zoning matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.