reviewing de novo Board of Adjustment's interpretation of MLUL
How later courts described this case
- reviewing de novo Board of Adjustment's interpretation of MLUL
- noting a substantial "interest exists in the preservation of the integrity of a zoning ordinance"
- recognizing the "development on one parcel of land can have consequences for others"
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0556-23
HOBOKEN FOR RESPONSIBLE
CANNABIS, INC., a NEW JERSEY APPROVED FOR PUBLICATION
nonprofit corporation, December 30, 2024
and ELIZABETH URTECHO,
APPELLATE DIVISION
Plaintiffs-Respondents,
v.
CITY OF HOBOKEN PLANNING
BOARD,
Defendant-Respondent,
and
BLUE VIOLETS, LLC,
Defendant-Appellant.
______________________________
Argued November 13, 2024 – Decided December 30, 2024
Before Judges Gilson, Firko and Bishop-Thompson.
On appeal from the Superior Court of New Jersey,
Law Division, Hudson County, Docket No.
L-3520-22.
Michael C. Klauder argued the cause for appellant
(Cole Schotz PC, attorneys; Michael C. Klauder, of
counsel and on the briefs).
Daniel L. Steinhagen argued the cause for respondents
Hoboken for Responsible Cannabis, Inc. and Elizabeth
Urtecho (Beattie Padovano, LLC, attorneys; Daniel L.
Steinhagen, of counsel and on the brief).
Richard Brigliadoro argued the cause for respondent
City of Hoboken Planning Board (Weiner Law Group
LLP, attorneys; Richard Brigliadoro, of counsel and
on the brief; Glenn C. Kienz, on the brief).
The opinion of the court was delivered by
FIRKO, J.A.D.
In this complaint in lieu of prerogative writs matter, defendant Blue
Violets LLC (Blue Violets) appeals from the September 26, 2023 Law
Division order, which vacated a Resolution of Approval (the Resolution) by
defendant City of Hoboken Planning Board (the Planning Board). The
Resolution of the Planning Board granted Blue Violets's conditional use
application to operate an adult "micro" cannabis retail business at 628
Washington Street, an existing mixed-use building, and exempted it from a
newly enacted Ordinance B-446 (the Ordinance), restricting any cannabis
retailer from being located within 600 feet of a primary or secondary school.
Because Blue Violets submitted its application to the City of Hoboken
Cannabis Review Board (CRB) before the Ordinance went into effect, we
conclude the Time of Application (TOA) Rule applies. Accordingly, for the
reasons that follow, we reverse and reinstate the Resolution. We affirm the
A-0556-23
2
trial court's order concluding plaintiff Hoboken for Responsible Cannabis, Inc.
(HFRC) has standing as an interested party under the Municipal Land Use Law
(MLUL), N.J.S.A 40:55D-1 to -163.
I.
We derive the following facts from the record. On June 17, 2020,
Hoboken adopted Ordinance B-267 and created the CRB, "which shall serve as
an advisory committee to the City of Hoboken whose duty it shall be to review
applications for cannabis wholesale, cannabis retailer, medical cannabis
dispensary and cannabis delivery operations based within the City of
Hoboken." Further, on August 18, 2021, Hoboken adopted Ordinance B-384,
which made the retail sale of cannabis a conditionally permitted use. The
ordinance was subsequently codified in Hoboken City Ordinance Section 196-
33.1.
The CRB "shall be comprised of seven members, requiring four for a
quorum: the Mayor or his or her designee, a City Councilmember to be
designated by the Council, the Director of Health and Human Services[,] and
four Hoboken residents." Hoboken, N.J. Code § 36-1. Before submitting its
forms to the Planning Board, "[a] cannabis retailer, medical cannabis
dispensary or cannabis delivery operator located within the [C]ity of Hoboken
shall first obtain an endorsement from the Hoboken [CRB]."
A-0556-23
3
To obtain approval, an applicant must submit a complete application to
the CRB, which includes the following:
(1) [A] [c]ompleted CRB application, checklist and
responsive materials submitted online.
(2) Fees: administrative fees and escrow fees remitted
to the City of Hoboken. Application [f]ee:
$2,500[.00]. Escrow [f]ee: $5,000[.00].
(3) Where the license applicant will be leasing the
premises, a signed certification from the property
owner/landlord that the owner/landlord is aware that
the tenant's use of the premises will involve activities
associated with medical, retail, wholesale, delivery,
and/or consumption of cannabis.
(4) Proof of legal possession of the proposed premises
by virtue of ownership, lease agreement or other
arrangement.
(5) A neighborhood impact report. This report should
address issues including, but not limited to:
anticipated increase in vehicular and pedestrian traffic
to and from the site; queuing of customers on the
right-of-way; noise; odor; accommodations for
delivery services, loading/unloading, and parking; and
any provision of public amenities.
(6) An environmental impact plan, which shall, at [a]
minimum, include consideration of sustainable
alternatives to single-use plastic packaging, efforts to
minimize water usage, efforts to minimize light
pollution, a refuse and recycling plan, and other
'Green Business' recommendations as set forth by the
Hoboken Green Team.
(7) An inventory control plan outlining what process
the applicant will use to track and control cannabis
A-0556-23
4
product inventories including, for instance: products
received from wholesalers and other outside sources,
products distributed to other facilities on a wholesale
basis, products sold through delivery services or by
other means to off-site customers, and products sold to
on-site customers.
(8) A copy of the safety and security plan the
applicant will be submitting with their [s]tate
application.
(9) A statement describing the hiring practices, job
creation and diversity plans the applicant proposes to
adopt as part of their ongoing operating agreement.
(10) Documentation of license applicant business
entity and associates:
a. Documentation of the formation of the license
applicant entity, including, but not limited to,
articles of incorporation or organization, charter,
bylaws, stock issuance records, operating
agreements, partnership agreements, other
formation documents filed with the Secretary of
State and any other documents that govern the
legal and ownership structure of the entity.
b. Copy of a valid New Jersey Business
Registration [c]ertificate on file with the
Division of Revenue and Enterprise Services
and the Department of the Treasury.
c. A list of all persons and/or entities that are
owners, passive investors, principals, and
managers of the license applicant, that hold at
least 10% aggregate ownership interest in the
license applicant, including their names,
addresses, dates of birth, photo identification,
position held, and percentage of ownership.
A-0556-23
5
d. Business entities or service contractors that
hold at least 10% aggregate ownership of a
license applicant shall, in addition to the above,
provide a separate list of persons with at least
10% aggregate ownership interest in the entity
or services contractor; their names, addresses,
dates of birth, photo identification, position
held, and percentage of ownership in the
business entity or services contracting entity.
e. A list of persons that are owners and
principals of the license applicant who have
resided in Hoboken for at least two years as of
the date of the application, and documentation
of such residency.
f. License applicant and cannabis business entity
organizational chart identifying ownership,
control, and operational structure, including
owners, principals, management services
contractors, managers, as well as parent
companies, subsidiaries, affiliates, predecessors,
and successors of the license applicant.
g. W-9 for person or entity supplying escrow
fees.
h. Certification of non-profit status, if
applicable.
(11) For the license applicant and each of its parent
companies, subsidiaries, affiliates, predecessors, or
successors:
a. A list of any previous violations of or
[judgment], order, consent decree, consent
order, sanction, or penalty pertaining to any
state or federal statute, regulation or code; and
A-0556-23
6
b. A list of all pending litigation or past
litigation that concluded in the last five years,
whether in this [S]tate or in another jurisdiction,
in which the applicant or entity was involved.
....
(16) Business Plan - same plan as submitted with
[s]tate application.
(17) Compliance Plan - same plan as submitted with
[s]tate application.
(18) Vendor-Contract Agreements - same as submitted
with [s]tate application.
(19) Any and all other information necessary to satisfy
the requirements set forth in the [m]unicipal [c]ode of
the City of Hoboken.
On January 22, 2022, Blue Violets attempted to submit an application to
the CRB but was informed that it would be deemed incomplete without a
signed lease. On February 18, 2022, Blue Violets signed a lease agreement for
628 Washington Street and submitted the final requisite documents to the
CRB. That same day, Blue Violets's application was deemed "completed" by
the CRB. Ten days later, on February 28, 2022, Blue Violets was advised by
the CRB secretary that its application was listed on the March 24, 2022, CRB
meeting agenda. Blue Violets was instructed to provide ten days' notice of the
CRB meeting to all properties situated within 200 feet of its property.
A-0556-23
7
On March 9, 2022, the Ordinance was introduced to amend "Section
196-33.1(I) of the City of Hoboken [z]oning [o]rdinance to provide . . . that no
cannabis retailer 'shall . . . be located within 600 feet in all directions of any
primary or secondary school. . . .'" The Ordinance further limited the number
of cannabis retailers—whether for adult use or medicinal use—to six. On
March 10 and 11, 2022, Blue Violets mailed notices—as directed—to eighty-
nine different addresses located within 200 feet of its proposed location in
anticipation of the March 24, 2022 CRB meeting.
Blue Violets attended the CRB meeting on March 24, 2022, but review
of its application was postponed until the next meeting, scheduled for April 21,
2022, because the meeting ran over time. On April 21, 2022, Blue Violets
attended the CRB meeting, and its application was endorsed by the CRB.
Meanwhile, on April 6, 2022, the City Council voted to adopt the
Ordinance. On April 28, 2022, the Ordinance went into effect after being
signed into law by Mayor Ravinder Bhalla.
The next day, April 29, 2022, Blue Violets submitted its signed
application to the Planning Board, the day after the Ordinance took effect. On
May 10, 2022, the Planning Board subdivision and site plan committee (the
subcommittee) met and deemed Blue Violets's conditional use application
incomplete because it did not include a completed construction disclosure
A-0556-23
8
form, flood plain administration letter or certification, an executed community
host agreement, a certificate of real estate taxes, lighting plan, or signage
information.
On June 14, 2022, the subcommittee again deemed Blue Violets's
conditional use application incomplete, despite Blue Violets submitting
additional documents. However, on July 7, 2022, after Blue Violets submitted
all the required documents, the subcommittee concluded Blue Violets's
conditional use application was complete and scheduled its application for a
public hearing.
On September 15, 2022, the Planning Board conducted a public hearing
regarding Blue Violets's conditional use application. At the public hearing,
Blue Violets, represented by counsel, presented testimony of its principal and a
professional planner. The public, including Urtecho, spoke during the public
comment portion of the hearing. Urtecho stated,
I would like the record to reflect that I am an objector
to the Blue Violets['s] application and I am putting
this [Planning] Board on notice that I [am] seeking
legal advice to challenge the Planning Board's
decision to move forward the Blue Violets['s]
application despite the dispensary's violation of the
[the Ordinance] that went into effect on April 28th.
On June 14th, 2022, Tiffanie Fisher, Jen
Giattino, and I submitted a letter to the Planning
Board and the secretary and attorney arguing that the
A-0556-23
9
Blue Violets['s] application would violate Hoboken's
[Ordinance] that went into effect on April 28th.
Specifically, [it] would violate [S]ection 196-
33.1 of this [O]rdinance, which states a dispensary
cannot be located within 600 feet in all directions of
any primary or secondary school.
Blue Violets'[s] proposed location at [the
Property] is just over 200 feet away from both
Hoboken Charter and All Saints Episcopal Day
School.
Blue Violets submitted an incomplete
application on April 29th, a day after the law[] went
into effect.
Our position is that New Jersey's [TOA Rule],
as interpreted by the New Jersey Supreme Court in the
ruling of [Dunbar Homes, Inc. v. Zoning Bd. of
Adjustment of Twp. of Franklin, 233 N.J. 546 (2018)]
. . . concludes that Blue Violets'[s] application was not
only submitted . . . too late, it was an incomplete
application and not deemed to be complete by this
Planning Board until July, two-and-a-half months after
the laws went into effect.
....
Our argument: The [CRB] is an advisory board
and has no legal authority. Mayor Bhalla confirms
this argument . . . on April 25th when he responded to
a concerned resident's question regarding . . . Blue
Violets['s] application.
I would like to submit the e-mail for the record.
Quoting from the e-mail, Mayor Bhalla states:
Please also be advised that the local
[CRB] is a local advisory board with no legal
A-0556-23
10
authority to approve or deny any given
application. [The CRB] can just vote to provide
a report recommending or not recommending
the application move further in the process and
state the reasons why.
Ultimately, the dispensaries will require
support from my office, the City Council, and
the Planning Board, all of which are binding
requirements.
In essence, Mayor Bhalla's e-mail clarifies that
the [CRB] prescreens applications before they are
legally decided upon by the Planning Board, City
Council, and Mayor.
Given the [CRB] has no legal authority per
Mayor Bhalla, it cannot benefit from the [TOA Rule],
and if the [CRB] misrepresented its legal authority to
the Blue Violets dispensary, it is an issue that Blue
Violets can take up with them.
The . . . Planning Board applies the [TOA Rule]
. . . to applications that it has jurisdiction over. It has
no jurisdiction over the [CRB], which has entirely
separate, less binding, and less robust application and
review requirements.
Therefore, Blue Violets submitted its
incomplete MLUL application to the . . . Planning
Board one day after Hoboken's new cannabis laws
went into effect and is in violation of [the Ordinance],
which states no dispensary can be located within 600
feet in all directions at any primary or secondary
school.
Blue Violets's attorney argued the TOA Rule applied to its application.
On September 15, 2022, over objection from Urtecho and others, the Planning
A-0556-23
11
Board unanimously voted to approve Blue Violets's conditional use
application. The Planning Board's attorney addressed the TOA Rule:
So any applicant, just so everyone here understands,
any applicant is entitled to the benefit of the law as it
stands at the time that they submit the application to
the [C]ity. . . . [T]here was no school requirement at
the time . . . the application was submitted and
accordingly it does not apply to this application.
On October 13, 2022, the Planning Board adopted the "Resolution of
Approval - Application of Blue Violets LLC - Approval of Conditional Use."
In the Resolution, the Planning Board stated,
Notably, a condition placed upon retail cannabis use is
that cannabis dispensaries may not be located within
600 feet of a primary or secondary school. However,
the [Planning] Board finds that [Blue Violets] began
its approval process by applying to the [CRB] prior to
the adoption and applicability of that [O]rdinance.
Accordingly, [Blue Violets] is entitled to application
of the [O]rdinance as it existed at the commencement
of its approval process, and this proximity requirement
does not apply to the subject [a]pplication.
....
NOW, THEREFORE, BE IT RESOLVED, by the
Planning Board of the City of Hoboken, County of
Hudson and State of New Jersey, on the 15th day of
September, 2022 . . . the [a]pplication of Blue Violets
LLC is hereby APPROVED . . . .
A-0556-23
12
On October 5, 2022, HFRC was incorporated. On October 21, 2022,
HFRC filed a complaint in lieu of prerogative writs challenging the Planning
Board's decision. As stated in its complaint,
Plaintiff [HFRC] . . . is a non-profit corporation
formed by residents and taxpayers of the City of
Hoboken, including its registered agent . . . Urtecho,
who participated in the proceedings below, who are
concerned about the manner in which the City of
Hoboken and its subordinate agencies and boards is
implementing the New Jersey Cannabis Regulatory,
Enforcement Assistance, and Marketplace
Modernization Act, [N.J.S.A. 24:6I-31 to -56] . . . its
land use ordinances adopted pursuant to the
[MLUL]. . . .
At the hearing before the trial court, HFRC argued, in part, that Blue
Violets's submissions to the CRB were not an application for development as
defined by the MLUL and the TOA Rule was not triggered. HFRC contended
that even if approval of the CRB is required prior to filing an application for
development with the Planning Board, it is only a submission requirement, and
not part of an application for development.
HFRC further asserted that Blue Violets's application for development
was not submitted prior to the April 28, 2022 effective date of the Ordinance,
and was not considered "complete" at the time of its submission the next day,
or thereafter on May 10 or June 14, 2022. HFRC argued Blue Violets's
application violated the Ordinance because its location falls within 600 feet of
A-0556-23
13
two primary schools, and the Planning Board lacked jurisdiction to consider
the application. HFRC sought to declare the Planning Board's decision was
arbitrary, capricious, and unreasonable, and to invalidate its Resolution issued
to Blue Violets.
In addition, HFRC contended that at the public hearing, the Planning
Board prevented members of the public from cross-examining Blue Violets's
witnesses about the Planning Board's jurisdiction and proximity of the
proposed location to nearby schools. Counsel for Blue Violets challenged
HFRC's standing under the MLUL to invalidate the Resolution. The trial court
reserved decision. Urtecho then moved to intervene.
On September 22, 2023, the trial court granted Urtecho's motion to
intervene. That same day, HFRC and Urtecho filed an amended complaint in
lieu of prerogative writs, alleging Urtecho is a resident and taxpayer of the
City of Hoboken and is the president of HFRC. The amended complaint
otherwise pled the same facts and sought the same relief as the original
complaint.
In a September 26, 2023 oral decision, the trial court vacated the
Planning Board's Resolution issued to Blue Violets. The trial court concluded
that the CRB "was not acting as a [P]lanning [B]oard under the [O]rdinance."
The trial court determined that the submission of an application to the CRB "is
A-0556-23
14
not an application for development under the MLUL . . . because the [CRB]
does not give approval for conditional use variances in subdivision plot[s], site
plan, planned development, cluster development, [or] zoning variance for
direction of the issuance of a permit."
In addressing the TOA Rule, the trial court found that the Planning
Board "did not consider the CRB application to be a complete application" and
thus, "[t]he facts right there destroyed Blue Violets'[s] . . . and [the] Planning
Board's arguments that the Planning Board application was complete when . . .
[Blue Violets] filed its CRB application on February 18, 2022." A
memorializing order was entered.
This appeal followed. Blue Violets moved for a stay pending appeal
under Rule 2:9-5, which the trial court denied. Blue Violets then moved for a
stay pending appeal before this court, which we granted. Blue Violets has
been and is currently operating its micro cannabis store.
Blue Violets reprises its arguments made before the trial court and
presents the following arguments for our consideration:
(1) the trial court erred in concluding that HFRC and
Urtecho have standing under the MLUL;
(2) the trial court erred in concluding that Blue
Violets's submission of a complete application to the
CRB did not trigger the TOA;
A-0556-23
15
(3) the trial court's decision to vacate the Resolution
undermines the clear purpose of the TOA; and
(4) the trial court erred in granting Urtecho's "eleventh
hour" motion to intervene and by enlarging the statute
of limitations applicable to her otherwise time-barred
claims.
Defendant Planning Board argues that the trial court erred in finding the
Planning Board did not have the protection of the TOA Rule against
subsequent zoning changes and in not concluding the CRB is an integral part
of the Planning Board process.
II.
"When reviewing a trial court's decision regarding the validity of a local
[B]oard's determination, 'we are bound by the same standards as . . . the trial
court.'" Jacoby v. Zoning Bd. of Adjustment of Borough of Englewood Cliffs,
442 N.J. Super. 450, 462 (App. Div. 2015) (quoting Fallone Props., L.L.C. v.
Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 562 (App. Div. 2004)). "We
have long recognized that [Z]oning [B]oards, 'because of their peculiar
knowledge of local conditions[,] must be allowed wide latitude in the exercise
of delegated discretion.'" Price v. Himeji, LLC, 214 N.J. 263, 284 (2013)
(alteration in original) (quoting Kramer v. Board of Adjustment, 45 N.J. 268,
296 (1965)).
A-0556-23
16
However, we review de novo a Board's conclusions of law.
Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993). Thus, we exercise plenary
review of a Board's interpretation of the MLUL. See Russo v. Board of Trs.,
PFRS, 206 N.J. 14, 27 (2011) (stating a court is "in no way bound by an
agency's interpretation of a statute") (quoting Mayflower Sec. Co. v. Bureau of
Sec., 64 N.J. 85, 93, 312 (1973)); Motley v. Borough of Seaside Park Zoning
Bd. of Adjustment, 430 N.J. Super. 132, 146 (App. Div. 2013) (reviewing de
novo Board of Adjustment's interpretation of MLUL).
We give deference to the actions and factual findings of local Boards.
Jacoby, 442 N.J. Super. at 462. "A [B]oard's decision 'is presumptively valid,
and is reversible only if arbitrary, capricious, and unreasonable.'" Smart SMR
of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327
(1998) (quoting Sica v. Board of Adjustment, 127 N.J. 152, 166-67 (1992));
see also Kane Props., LLC v. City of Hoboken, 214 N.J. 199, 229 (2013).
"We do not review the wisdom of [a Planning Board's] decision, rather
. . . we merely 'determine whether the [B]oard could reasonably have reached
its decision.'" Pullen v. Township of S. Plainfield Plan. Bd., 291 N.J. Super. 1,
6-7 (App. Div. 1996) (quoting Davis Enters. v. Karpf, 105 N.J. 476, 485
(1987)). "Accordingly, we will not disturb a [B]oard's decision unless we find
A-0556-23
17
a clear abuse of discretion." Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment,
172 N.J. 75, 82 (2002).
A. Standing
Blue Violets first argues the trial court erred because HFRC lacked
standing under the MLUL to challenge the approval granted by the Planning
Board. We disagree.
Standing is a threshold issue, which "neither depends on nor determines
the merits of a plaintiff's claim." Edison Bd. of Educ. v. Zoning Bd. of
Adjustment of Edison, 464 N.J. Super. 298, 305 (App. Div. 2020) (quoting
Watkins v. Resorts Int'l Hotel & Casino, 124 N.J. 398, 417 (1991)). Courts
may not entertain proceedings by plaintiffs who: (1) "do not have sufficient
legal standing to maintain their actions"; or (2) "are 'mere intermeddlers,' or
are merely interlopers or strangers to the dispute." Cherokee LCP Land, LLC
v. City of Linden Plan. Bd., 234 N.J. 403, 423 (2018) (Timpone, J., dissenting)
(first quoting Al Walker, Inc. v. Borough of Stanhope, 23 N.J. 657, 660
(1957); and then quoting Crescent Park Tenants Ass'n v. Realty Equities Corp.
of N.Y., 58 N.J. 98, 107 (1971)).
"[S]tanding must be considered on a case-by-case basis." Edison Bd. of
Educ., 464 N.J. Super. at 306 (quoting Cherokee LCP Land, 234 N.J. at 418).
A party has standing only if the party "demonstrates 'a sufficient stake and real
A-0556-23
18
adverseness with respect to the subject matter of the litigation [and a]
substantial likelihood of some harm . . . in the event of an unfavorable
decision.'" Id. at 305-06 (alterations in original) (quoting Cherokee LCP Land,
234 N.J. at 423).
"[T]he MLUL contains specific requirements for standing, both before
the land use [B]oard and before the court." Id. at 306; see also Cox et al., New
Jersey Zoning & Land Use Administration, § 40-4.1 (2024) (noting generally
"standing to appeal decisions taken at a municipal level [to be] consistent with
standing to appear before those bodies or officers"). The MLUL recognizes
"development on one parcel of land can have consequences for others" and, as
such, provides, in relevant part, an "interested party may appeal to the
governing body any final decision of a [B]oard of [A]djustment approving an
application for development." Cherokee LCP Land, 234 N.J. at 407, 416
(emphasis added) (quoting N.J.S.A. 40:55D-17(a)). The MLUL defines an
"interested party" as:
any person, whether residing within or without the
municipality, whose right to use, acquire, or enjoy
property is or may be affected by any action taken
under [this act], or whose rights to use, acquire, or
enjoy property under [this act], or under any other law
of this State or of the United States have been denied,
violated or infringed by an action or a failure to act
under [this act].
A-0556-23
19
[Id. at 416 (alterations in original) (quoting N.J.S.A.
40:55D-4).]
As such, our Supreme Court has held although a reviewing court must
take "a liberal approach to standing in zoning cases and . . . broadly construe[]
the MLUL's definition of 'interested party,'" standing still requires a party to
establish both: (1) a "right to use, acquire, or enjoy property"; and (2) "that
right 'is or may be affected.'" Id. at 416-17 (first quoting DePetro v. Township
of Wayne Plan. Bd., 367 N.J. Super. 161, 172 (App. Div. 2004); and then
quoting N.J.S.A. 40:55D-4). The MLUL's definition of an "interested party"
"should be understood in the context of the MLUL generally," and, as such, a
party's right of "use, enjoyment or right to acquire should always be evaluated
in terms of the purpose of the MLUL." Edison Bd. of Educ., 464 N.J. Super.
at 306 (quoting Cox et al., § 18-2.2).
Here, we are satisfied both HFRC and Urtecho had standing as
"interested parties." HFRC is composed of residents of Hoboken, including
Urtecho, who appealed the Planning Board's final decision "approving an
application for development," see Cherokee LCP Land, 234 N.J. at 407, 416
(quoting N.J.S.A. 40:55D-17(a)). Moreover, HFRC and Urtecho inherently
have standing to challenge the Planning Board's "Approval of Conditional
Use," which may impact HFRC's and Urtecho's rights of use and enjoyment of
their properties by virtue of the potential impact on Hoboken's zoning plan or
A-0556-23
20
the community welfare. See Edison Bd. of Educ., 464 N.J. Super. at 306;
Booth v. Board of Adjustment of Rockaway Twp., 50 N.J. 302, 305 (1967);
see also Cherokee LCP Land, 234 N.J. at 407 (recognizing the "development
on one parcel of land can have consequences for others"); DePetro, 367 N.J.
Super. at 171 (noting a substantial "interest exists in the preservation of the
integrity of a zoning ordinance").
Therefore, in light of this analysis, the trial court did not err in
concluding that HFRC had standing as an interested party under the MLUL.
B. TOA Rule
Next, we address Blue Violets's argument that the trial court erred in
concluding Blue Violets's application to the CRB did not trigger the TOA.
Planning Boards are subject to the TOA Rule. Dunbar, 233 N.J. at 560. The
TOA Rule provides:
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.
[N.J.S.A. 40:55D-10.5.]
A-0556-23
21
The TOA Rule applies only when there is a complete application for
development. Dunbar, 233 N.J. at 556. "An application for development is
complete for purposes of commencing the applicable time period for action by
a municipal agency, when so certified by the municipal agency or its
authorized committee or designee." N.J.S.A. 40:55D-10.3. A municipal
agency has forty-five days to act on the application and if no action is taken,
the application shall be deemed complete. Ibid. "[I]n the event information
required by local ordinance is not pertinent, the applicant may request a waiver
as to that information or those documents it finds extraneous." Dunbar, 233
N.J. at 562-63.
The applicant's submission will provisionally trigger
the TOA Rule if a waiver request for one or more
items accompanies all other required materials; if the
Board grants the waiver, then the application will be
deemed complete. If the Board denies the waiver, its
decision will be subject to review under the customary
"arbitrary and capricious or unreasonable" standard.
[Dunbar, 233 N.J. at 563 (quoting Grabowsky v.
Township of Montclair, 221 N.J. 536, 551 (2015)).]
The MLUL also addresses conditional approvals:
In the event that development proposed by an
application for development requires an approval by a
governmental agency other than the municipal agency,
the municipal agency shall, in appropriate instances,
condition its approval upon the subsequent approval of
such governmental agency; provided that the
municipality shall make a decision on any application
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for development within the time period provided in
this act or within an extension of such period as has
been agreed to by the applicant unless the municipal
agency is prevented or relieved from so acting by the
operation of law.
[N.J.S.A. 40:55D-22(b).]
In Jai Sai Ram, LLC v. Planning/Zoning Bd., 446 N.J. Super. 338 (App.
Div. 2016), we explained that the reason the TOA Rule was implemented was
because, previously, the "time of decision rule" had "allowed municipalities to
block proposed developments by changing the applicable zoning ordinances
while the development applications were being considered." Id. at 343. Thus,
the Legislature sought to stop the practice that permitted municipalities to
change zoning ordinances as a means of rejecting development applications,
because the changed ordinance would no longer be applicable to the already
submitted application. Ibid.
The Dunbar Court stated the following:
The TOA Rule, which took effect in May 2011
. . . replaced the former "time of decision rule." See
A. Housing & Local Gov't Comm. Statement to A. 437
(2010). The time of decision rule required that
[Z]oning [B]oards and reviewing courts "apply the
statute in effect at the time of the [land-use
application] decision." Pizzo Mantin Grp. v. Township
of Randolph, 137 N.J. 216, 235 (1994). The time of
decision rule allowed municipalities to "change . . .
land-use ordinances after an application ha[d] been
filed, even 'in direct response to the application.'"
Ibid. (quoting Burcam Corp. v. Planning Bd. of
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Medford, 168 N.J. Super. 508, 512 (App. Div. 1979)).
The Legislature acknowledged that the time of
decision rule had produced "inequitable results, such
as when an applicant has expended considerable
amounts of money for professional services and
documentation that becomes unusable after [an]
ordinance has been amended." A. Housing & Local
Gov't Comm. Statement to A. 437 (2010) . . . .
....
The terms used in the TOA Rule are to be
construed in accordance with any definitions set forth
in the MLUL. See Norman J. Singer & J.D. Shambie
Singer, 1A Sutherland Statutory Construction § 20:8
(7th ed. 2008) ("The definition of a term in the
definitional section of a statute controls the
construction of that term wherever it appears
throughout the statute."). Thus, the term "application
for development" must be interpreted to mean "the
application form and all accompanying documents
required by ordinance for approval of a subdivision
plat, site plan, planned development, cluster
development, conditional use, zoning variance or
direction of the issuance of a permit." N.J.S.A.
40:55D-3 (emphasis added).
Determinations as to the precise contents of an
"application for development" are thus left to
municipalities, in accordance with the Legislature's
general exercise of its "constitutional authority to
delegate to municipalities the 'police power' to enact
ordinances governing" land use "through the passage
of the [MLUL]." 388 Route 22 Readington Realty
Holdings, LLC v. Township of Readington, 221 N.J.
318, 338 (2015). Significantly, "[b]ecause the
planning and zoning power stems from legislative
allowance, it must be exercised in strict conformity
with the delegating enactment—the MLUL." Nuckel
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v. Borough of Little Ferry Plan. Bd., 208 N.J. 95, 101
(2011).
[Dunbar, 233 N.J. at 560-61.]
We noted the TOA Rule's legislative history in Jai Sai Ram, LLC,
Prior to its adoption, our courts applied the
"time of decision" rule, under which a decision
concerning a land use application would be based on
the municipal ordinance as it existed at the time the
application or appeal was being decided. Maragliano
v. Land Use Bd. of Wantage, 403 N.J. Super. 80, 83
(App. Div. 2008). The time of decision rule allowed
municipalities to block proposed developments by
changing the applicable zoning ordinances while the
development applications were being considered. See
Manalapan Realty, L.P. v. Township Comm. of
Manalapan, 140 N.J. 366, 378-79 (1995).
Thus, "[i]n the area of land use, a municipality
may change its regulating ordinances after an
application has been filed and even after a
building permit has been issued and, as long as
the applicant has not substantially relied upon
the issuance of the building permit, it is subject
to the amended ordinance."
[Maragliano, 403 N.J. Super. at 83 (citation
omitted).]
The clear purpose of N.J.S.A. 40:55D-10.5 . . . was to
assist developers and property owners by obviating the
time of decision rule. See Sponsor's Statement to A.
437 (2010) (stating the bill's intent to "override . . . the
'time of decision rule.'"); S. Cmty. & Urban Affairs
Comm. Statement to S. 82 (2010). The Legislature
was concerned about situations in which a developer
would spend time and money pursuing an application,
only to have a municipality change the zoning to the
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developer's detriment while the application was
pending. The Sponsor's Statement reflects the statute's
purpose:
Under current law, applicants are subject to
changes to municipal ordinances that are made
after the application has been filed, and even
after a building permit has been issued. . . .
Application of this rule sometimes causes
inequitable results, such as when an applicant
has expended considerable amounts of money
for professional services and documentation that
become unusable after the ordinance has been
amended. While effectively prohibiting
municipalities from responding to an application
for development by changing the law to frustrate
that application, the bill recognizes that
ordinance changes necessary for the protection
of health and public safety would apply to
pending applications.
[Sponsor's Statement to A. 437 (2010).]
The Governor's Message, issued upon signing the bill,
likewise explained its goals:
The legislation does not guarantee approval of a
land-use application, but instead allows for the
application process to move forward without the
unnecessary hurdle of constantly changing
requirements while the application is pending.
"New Jersey's businesses and entrepreneurs—
the job creators of our [S]tate—invest
considerable amounts of financial and human
resources in navigating a vast landscape of rules
and regulations at the state and local level," said
Governor Christie. "Prior to the signing of this
legislation, the system allowed for those rules to
be changed in the middle of the process, even
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after an application has been submitted. This
legislation makes common sense changes to
improve the application process and move New
Jersey in the right direction of providing a
friendlier environment for job creation, while
keeping safeguards for public health and safety
in place."
Currently, regulations do not "lock-in" until
preliminary approval is granted for an
application, allowing municipalities to change
the requirement of an application after its initial
submission, resulting in a business that is
investing in New Jersey having to start the
costly, time-intensive application process over,
or abandoning the project altogether.
[Jai Sai Ram, LLC, 446 N.J. Super. at 343-45 (quoting
Governor's Message to S. 82 (2010)).]
Jai Sam Ram, LLC contemplated the exact scenario that is presented in
the matter under review. We held the TOA Rule was created because, "[t]he
Legislature was concerned about situations in which a developer would spend
time and money pursuing an application, only to have a municipality change
the zoning to the developer's detriment while the application was pending." Id.
at 344. To avoid an "absurd result" in this matter, we must follow "the spirit
of the law." Id. at 345.
Applying these principles to the matter before us, we conclude the trial
court erred in holding the TOA Rule did not apply to Blue Violets's application
to the CRB. The Hoboken Code states,
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The [CRB] shall receive and review all applications
for cannabis wholesaler, cannabis retailer, medical
cannabis dispensary and Hoboken-based cannabis
delivery and shall provide an endorsement, or report
to the contrary, to the [L]and [U]se [B]oard of
jurisdiction prior to the applicant's submission of a
conditional use application to the [Planning] [B]oard.
[Hoboken, N.J., Code § 36-4(A).]
Therefore, the protection afforded by N.J.S.A. 40:55D-10.5 was triggered
when Blue Violets made its submission to the CRB. The submission to the
CRB was an "application for development," as defined by N.J.S.A. 40:55D -
10.5. Thus, the TOA Rule applies. HFRC's challenge to the Planning Board's
Resolution is thus moot. See Jai Sai Ram, LLC, 446 N.J. Super. at 345.
The record amply supports the Planning Board's decision to grant the
Resolution to Blue Violets. The CRB was created by Hoboken as a separate
arm of the Planning Board. In that regard, the CRB had the responsibility to
review cannabis site plan applications for land use compliance. The
application process to obtain CRB approval was costly and time-consuming.
Indeed, Blue Violets contends it spent $69,375.00 to complete the CRB
application and seek final site plan approval.
The CRB is a "municipal agency" as defined in N.J.S.A. 40:55D-10.3,
with the goal "to assure the public health, safety, and general welfare of . . .
Hoboken and its residents, business establishments and visitors." We conclude
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the CRB falls within the definition of the MLUL as a "municipal agency,"
serving as an "arm" to the Planning Board by reviewing cannabis-related
applications and holding hearings.
The record establishes that the CRB reviewed Blue Violets's application
and deemed it complete as of February 2022, which triggered the TOA Rule.
The Ordinance did not go into effect until approximately two months later , on
April 28, 2022. Therefore, the Planning Board correctly determined that Blue
Violets's application was not subject to the Ordinance. Thus, we hold the trial
court erred in vacating the Resolution, warranting reversal.
In sum, we: (1) affirm the trial court's order concluding HFRC has
standing as an interested party under the MLUL; and (2) reverse the trial
court's order vacating the Resolution because Blue Violets's submission of a
completed application to the CRB triggered the TOA Rule. In light of our
conclusion, we need not address Blue Violets's contentions that the trial court
erred in granting Urtecho's motion to intervene and enlarged the statute of
limitations applicable to her claims.
Affirmed in part, reversed and vacated in part. The stay entered by this
court is dissolved. We do not retain jurisdiction.
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