NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2075-14T2
JAI SAI RAM, LLC, a limited
liability company of the State
of New Jersey, and SUNIL DHIR,
APPROVED FOR PUBLICATION
Plaintiffs-Appellants,
July 27, 2016
v. APPELLATE DIVISION
THE PLANNING/ZONING BOARD OF
THE BOROUGH OF SOUTH TOMS RIVER
and WAWA, INC.,
Defendants-Respondents.
_______________________________________
Argued March 8, 2016 - Decided July 27, 2016
Before Judges Reisner, Hoffman and Leone.
On appeal from the Superior Court of New
Jersey, Law Division, Ocean County, Docket
No. L-1005-14.
Edward F. Liston, Jr., argued the cause for
appellants.
Sebastian Ferrantell argued the cause for
respondent Planning/Zoning Board of South
Toms River (Montenegro, Thompson, Montenegro
& Genz, attorneys; Mr. Ferrantell, of
counsel and on the brief).
Stephen R. Nehmad argued the cause for
respondent Wawa, Inc. (Nehmad Perillo &
Davis, attorneys; Mr. Nehmad and Michael R.
Peacock, on the brief).
The opinion of the court was delivered by
REISNER, P.J.A.D.
Plaintiffs Jai Sai Ram, LLC and Sunil Dhir appeal from a
December 3, 2014 order dismissing their complaint in lieu of
prerogative writs against defendants, the Planning/Zoning Board
of the Borough of South Toms River1 (Board) and Wawa, Inc.
(Wawa). The primary issue presented by this appeal is whether
the time of application rule, set forth in N.J.S.A. 40:55D-10.5,
applies where, after a use variance application is filed,
seeking relief under the existing zoning ordinance, the
municipality amends the ordinance to specifically permit the use
which is the subject of the application. Construing the statute
in light of the purpose for which the Legislature adopted it, we
conclude that the rule does not apply in that situation, and the
developer is entitled to the benefit of the ordinance as
amended.
I
In this case, Wawa applied for a use variance to construct
a combined convenience store and gas station on a piece of
property that was located partially in a highway development
zone and partly in a residential zone. At the time the
1
South Toms River has a combined planning and zoning board. See
N.J.S.A. 40:55D-25(c).
2 A-2075-14T2
application was filed, the proposed use was not permitted in
either zone. It also was not clear whether the Board would
consider a combined gas station/convenience store to constitute
two principal uses on a single lot, which was also prohibited
under the zoning ordinance.
The Wawa site was located in the Pinelands, see N.J.S.A.
13:18A-11, but in a section designated as a Pinelands Regional
Growth Area, where commercial development is encouraged "in
order to accommodate regional growth influences in an orderly
way." N.J.S.A. 13:18A-9; see also N.J.A.C. 7:50-5.13(g)
(defining regional growth areas); N.J.A.C. 7:50-5.28 (providing
minimum standards for development in regional growth areas).
After Wawa filed its application, the municipal ordinance was
amended in 2013 to make the entire area surrounding the project
a special economic development (SED) zone, instead of a partly
highway commercial and partly residential zone.2 However, the
2
Because the site was located in the Pinelands, and the
Pinelands Commission (Commission) had not yet certified the
municipal master plan and zoning ordinance as being in
compliance with the Pinelands Comprehensive Master Plan (CMP),
the Commission's regulations required Wawa to obtain the
Commission's preliminary approval (known as a "Certificate of
Completeness") before proceeding with its application to the
Board. N.J.A.C. 7:50-4.15; N.J.A.C. 7:50-4.17. While Wawa's
land use application was pending before the Board, the
Commission certified the local master plan and zoning, including
the creation of the SED zone. Despite the certification, the
Board's subsequent resolution approving Wawa's application still
(continued)
3 A-2075-14T2
SED zone did not specifically provide for a combined gas
station/convenience store use, and the 2013 zoning amendment did
not change the ordinance's prohibition against siting two
principal uses on a single lot.
On January 22, 2014, the Board approved Wawa's application.
The approval was memorialized in a fifty-page Resolution dated
February 9, 2014.3 Notably, in its resolution, the Board found
Wawa's expert witnesses credible on all pertinent issues, and
found plaintiffs' experts not credible. The Board determined
that the combined gas station/convenience store constituted one
principal use of the property. The Board also approved Wawa's
application for preliminary and final major site plan approval
and several bulk variances, and granted a use variance for this
particular commercial use. On April 8, 2014, the Executive
(continued)
needed to be reviewed by the Commission's Executive Director to
ensure that it conformed to the requirements of the CMP. See
N.J.S.A. 13:18A-10(c); N.J.A.C. 7:50-4.22 (review of final local
decision in uncertified municipality); N.J.A.C. 7:50-4.40(a)
(review of final local decision in certified municipality). The
Executive Director's final approval letter is known as a "no
call up" letter, because it signals that the Board's decision
need not be called up for further review by the Commission. See
N.J.A.C. 7:50-4.40(a), -4.40(d).
3
On April 15, 2014, the Board approved Wawa's application for a
minor subdivision of the property. Plaintiffs did not challenge
the April 15, 2014 decision in their complaint in lieu of
prerogative writs, which was filed on April 9, 2014.
4 A-2075-14T2
Director of the Pinelands Commission issued a final approval
letter, determining that Wawa's proposed development and the
Board's approval were consistent with the Pinelands
Comprehensive Master Plan.4
Plaintiffs did not appeal to this court from the
Commission's decision. However, plaintiffs filed an action in
lieu of prerogative writs in the Law Division, challenging the
Board's decision. The trial court affirmed the Board's
decision, for reasons stated in a thirty-two-page written
opinion.
Plaintiffs appealed from the Law Division's final order.
While this appeal was pending, the municipality amended its
zoning ordinance to specifically designate "single use retail
sales & gasoline filling stations operated by a single business
entity . . . not part of a planned development" as a permitted
principal use in the SED zone. South Toms River, N.J.,
Ordinance 2-15 (January 30, 2015). The Executive Director of
the Pinelands Commission approved that amended ordinance on
4
The Pinelands Commission regulations provide, in pertinent
part: "Unless expressly permitted in a certified municipal land
use ordinance, no more than one principal use shall be located
on one lot." N.J.A.C. 7:50-5.1(c). In approving the Board's
resolution on April 8, 2014, before the municipality amended its
zoning ordinance to specifically allow combined gas
station/convenience stores in the zone, the Commission signaled
that it considered a combined gas station/convenience store to
be one principal use.
5 A-2075-14T2
April 16, 2015. See N.J.A.C. 7:50-3.45.
For the reasons set forth below, the applicant is entitled
to the benefit of the 2015 amendment and, accordingly,
plaintiffs' appeal challenging the use variance is moot.
II
The time of application rule applies to municipal
development regulations, and provides as follows:
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.]
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), certif. denied, 197 N.J. 476 (2009). The time
of decision rule allowed municipalities to block proposed
developments by changing the applicable zoning ordinances while
6 A-2075-14T2
the development applications were being considered. See
Manalapan Realty, L.P. v. Twp. 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, supra, 403 N.J. Super. at 83
(citation omitted).]
The clear purpose of N.J.S.A. 40:55D-10.5, adopted as L.
2010, c. 9, § 1, 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 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
7 A-2075-14T2
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 state - 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 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
8 A-2075-14T2
having to start the costly, time-intensive
application process over, or abandoning the
project altogether.
[Governor's Message to S. 82 (May 5, 2010).]
In construing legislation, our "overriding goal is to give
effect to the Legislature's intent." State v. D.A., 191 N.J.
158, 164 (2007) (citing DiProspero v. Penn, 183 N.J. 477, 492
(2005)). Ordinarily, "the best indicator of that intent is the
plain language" of the statute. State v. Gandhi, 201 N.J. 161,
176 (2010) (citation omitted). However, we do not follow that
rule when to do so would produce an absurd result, at odds with
the clear purpose of the legislation. See Perrelli v.
Pastorelle, 206 N.J. 193, 200-01 (2011); Marshall v. Klebanov,
188 N.J. 23, 36-37 (2006).
[W]e also have stressed that "where a
literal interpretation would create a
manifestly absurd result, contrary to public
policy, the spirit of the law should
control." Thus, when a "'literal
interpretation of individual statutory terms
or provisions'" would lead to results
"'inconsistent with the overall purpose of
the statute,'" that interpretation should be
rejected.
[Hubbard v. Reed, 168 N.J. 387, 392-93
(2001) (citations omitted); see also Sussex
Commons Assocs., LLC v. Rutgers, 210 N.J.
531, 540-41 (2012).]
In this case, while the literal terms of the statute could
be construed to prevent a favorable land use amendment from
9 A-2075-14T2
applying to a pending application, that reading would be
completely contrary to its purpose. Accordingly, we conclude
that the statute does not apply where the local zoning is
amended to specifically permit the use which is the subject of a
variance application. In that situation, the variance is no
longer necessary, and it would be absurd, as well as contrary to
the Legislature's purpose, to hold the applicant to the less
favorable standards of the pre-existing ordinance.
Likewise, where, as here, there is a pending appeal
challenging the grant of the variance, the appeal becomes moot
by virtue of the amendment specifically permitting the use.
The dispute is moot because, even if we were to decide the
appeal in appellants' favor, the applicant could proceed with
the project without the variance. See In re Application for a
Retail Firearms Dealer's License Renewal, 445 N.J. Super. 80, 97
(App. Div. 2016) (citing Greenfield v. N.J. Dep't of Corr., 382
N.J. Super. 254, 257-58 (App. Div. 2006)).5
Finally, because the appeal is moot for the reasons
discussed above, this case does not require us to decide how or
whether the Pinelands Preservation Act may affect the
implementation of N.J.S.A. 40:55D-10.5 where a Pinelands
5
For completeness, we note that if the appeal were not moot, we
would affirm the grant of the use variance for the reasons
stated by the trial judge in his comprehensive opinion.
10 A-2075-14T2
municipality's zoning scheme is uncertified at the time a land
use application is filed but is thereafter certified by the
Commission after being amended by the municipality.
Here, plaintiffs argue that, once the 2013 zoning amendment
was certified by the Commission, the Board was bound to apply
the ordinance as amended. As the trial judge noted, in this
case, the applicant's evidence at the Board hearing addressed
both the uncertified and certified ordinances. The Board's
resolution did likewise, although the resolution stated that the
Board rendered its decision under the uncertified ordinance,
applying the time of application rule. The Pinelands Commission
approved the Board's resolution, finding that the approvals
granted were consistent with the CMP. As previously noted,
plaintiffs have not appealed from the Commission's April 8, 2014
decision.
Further, as the Board's resolution noted, the certified SED
zoning ordinance was more favorable to the applicant than the
existing uncertified ordinance, and the application would have
warranted approval under either enactment. Indeed, plaintiffs
have not cited any differences between the uncertified ordinance
and the certified ordinance which would have negatively affected
Wawa's application. Thus, this case does not present a
situation where the certified ordinance is more restrictive than
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the previous, uncertified ordinance and, thus, where the time of
application rule would make a difference to the Board's
decision. Lastly, as previously noted, the use variance issue
is now moot by virtue of the municipality's adoption, and the
Commission's approval, of the 2015 amended ordinance
specifically permitting this use in the zone.
III
Plaintiffs' remaining appellate arguments do not warrant
extended discussion. Plaintiffs contend that, as the lessee of
the property to be developed, Wawa lacked standing to pursue its
entire land use application, despite the landowner's written
consent. They also argue that the mayor and two borough council
members, all of whom were also Board members, improperly
participated in the Board proceedings, although they were
statutorily precluded from doing so because the application
involved a use variance. See N.J.S.A. 40:55D-25(c)(1). The
latter argument is not supported by the record, and we reject
both arguments for the reasons stated by the trial judge in his
comprehensive opinion.
The judge also properly rejected plaintiffs' argument that
the proposed project constituted an "automobile service station"
under the local zoning ordinance and therefore required a 1500-
foot set-back from nearby churches and schools. Plaintiffs'
12 A-2075-14T2
additional arguments were likewise thoroughly and correctly
addressed and rejected in the trial judge's opinion. Those
contentions are without sufficient merit to warrant further
discussion here. R. 2:11-3(e)(1)(E).
Affirmed.
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