MICHAEL PERLMUTTER v. TOWNSHIP OF TOMS RIVER PLANNING BOARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2814-11T4

A-2958-12T4

A-0

 

MICHAEL PERLMUTTER,

Plaintiff-Appellant,

v.

TOWNSHIP OF TOMS RIVER PLANNING

BOARD and JAYLIN HOLDINGS, LLC,

Defendants-Respondents.

___________________________________
 

MICHAEL PERLMUTTER,

Plaintiff-Appellant,

v.

TOWNSHIP COUNCIL OF THE TOWNSHIP

OF MANCHESTER, TOWNSHIP OF

MANCHESTER, TOWNSHIP OF MANCHESTER

PLANNING BOARD, JAYLIN HOLDINGS,

LLC and ESTATE OF JEAN T. VARELLI,

Defendants-Respondents.

___________________________________

MICHAEL PERLMUTTER,

Plaintiff-Appellant,

v.

TOWNSHIP OF TOMS RIVER ZONING

BOARD OF ADJUSTMENT,

Defendant-Respondent,

and

JAYLIN HOLDINGS, LLC,

Defendant/Intervenor-

Respondent.

___________________________________

MICHAEL PERLMUTTER,

Plaintiff-Appellant,

v.

JAYLIN HOLDINGS, LLC; TOWNSHIP

OF TOMS RIVER PLANNNG BOARD; and

TOWNSHIP OF MANCHESTER PLANNING

BOARD,

Defendants-Respondents.

___________________________________

JAYLIN HOLDINGS, LLC,

Plaintiff-Respondent,

v.

MICHAEL PERLMUTTER,

Defendant-Appellant,

and

MANCHESTER TOWNSHIP ZONING

BOARD OF ADJUSTMENT,

Defendant-Respondent.

____________________________________

June 3, 2014

 

Argued March 24, 2014 Decided

 

Before Judges Parrillo, Harris, and Guadagno.

 

 

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket Nos. L-4322-10, L-4565-10, L-4670-10, L-1784-12, and L-1200-13.

 

Ronald S. Gasiorowski argued the cause for appellant Michael Perlmutter (Gasiorowski & Holobinko, attorneys; Mr. Gasiorowski, on the brief).

 

Thomas G. Gannon argued the cause for respondent Township of Toms River Planning Board (Hiering, Gannon & McKenna, attorneys; Mr. Gannon, on the brief).

 

Robert C. Shea argued the cause for respondents Jaylin Holdings, LLC and The Estate of Jean T. Varelli (R.C. Shea & Associates, attorneys; Mr. Shea of counsel and on the brief; Dina M. Vicari, on the brief).

 

Steven Secare argued the cause for respondent Township Council of the Township of Manchester and the Township of Manchester (Secare and Hensel, attorneys; Mr. Secare and Harold N. Hensel, on the brief).

 

Edward F. Liston, Jr., argued the cause for respondent Township of Manchester Planning Board.

 

Kim A. Pascarella argued the cause for respondent Township of Toms River Zoning Board of Adjustment.

 

Respondent Manchester Township Zoning Board of Adjustment has not filed a brief.

 

PER CURIAM

These three back-to-back appeals, which we consolidate for purposes of this opinion, involve part of respondent Jaylin Holdings LLC's ten-year-long odyssey to develop land in Toms River Township and Manchester Township for a shopping center anchored by a Walmart Supercenter and Garden Center.1 We affirm in part, reverse in part, and dismiss in part.

I.

A.

In August 2004, Jaylin submitted separate land development applications to the Toms River Planning Board and the Manchester Planning Board for permission to develop, as a unified project, an aggregate forty-three-acre site that straddled the municipal boundaries of the respective townships. The site is located in the coastal area of the Pinelands National Reserve, see N.J.A.C. 7:7E-3.44(a)(2), but is part of the Pinelands Regional Growth Area. See N.J.A.C. 7:50-5.12(a)(7); -5.13(g).

In Toms River, Jaylin sought preliminary and final site plan approval, together with variances, design waivers, and checklist waivers, for its approximately seventeen-acre parcel located in the Rural Highway Business (RHB) zoning district along Route 37. In Manchester, Jaylin, together with Jean Varelli (the owner of a small lot that was to be subdivided2 and added to Jaylin's holdings), sought "a minor subdivision of Block 44 Lot 4 and preliminary and [f]inal [m]ajor site plan approval w/variances for the construction of a retail shopping center" for approximately twenty-five acres of contiguous land to the subject of the Toms River development application. The land in Manchester is located in the municipality's HD-3 Highway Development (HD-3) zoning district.

In July 2005, the Manchester governing body adopted Ordinance 05-043 in order to "clarify the definition[] of 'shopping center'" and to add "shopping plazas, shopping centers, and neighborhood shopping centers" as permitted uses in the HD-3 and other zones. The ordinance added this definition:

A shopping center may include establishments that are operated independently from each other within the same overall structure or a single establishment that provides a variety of separate commercial activities such as groceries, bakery, garden center, auto services and/or other commercial activities that are permitted uses, permitted accessory uses or conditional uses within the zoning district.

In August 2005, the Toms River Planning Board granted Jaylin's development application. In October 2005, the Manchester Planning Board did the same.

Appellant Michael Perlmutter filed several actions in lieu of prerogative writs challenging those approvals, which led to such approvals being later vacated by the respective land use boards in December 2009, when "new application[s] for the site[s] ha[d] been filed with significant amendments to the previous application[s]." Perlmutter also filed an action in lieu of prerogative writs attacking Manchester's Ordinance 05-043, but the parties entered into an arrangement, approved by the Law Division's April 1, 2010 consent order, by which the "[c]omplaint [wa]s . . . voluntarily dismissed by all parties, without prejudice," and Perlmutter was permitted to "re-file" the litigation under certain circumstances.

B.

In October 2009, Jaylin and the Estate of Jean T. Varelli3 filed the current application with the Manchester Planning Board, again seeking preliminary and final site plan and minor subdivision approvals, plus dimensional variances, design waivers, and checklist waivers. The application, although depicting a development plan significantly altered from the 2004 plan, stated that its purpose was to use the property "to construct a Wal-Mart Supercenter with Garden Center, a general merchandise store, which is a permitted use in the HD-3 zone."

Later that month, Jaylin filed its corresponding application with the Toms River Planning Board. Public notices were published for hearings on the applications, which described the project as

an approximately 193,496 sq. ft. Wal-Mart Store including a seasonal garden center. The building will be located in Toms River Township at the southern end of the property . . . . The site will be accessible from both Route 37 and Northampton Boulevard. A total of 833 parking spaces, and other associated site improvements are proposed for the site. A barrier around the western portion of the parking lot and the access driveway from Route 37 is proposed. Additional site improvements include storm-water management facilities, lighting and landscaping.

 

Following months of separate hearings in both municipalities, the Toms River Planning Board granted conditional4 preliminary and final major site plan approval with variances and design waivers on October 6, 2010. On November 1, 2010, the Manchester Planning Board similarly granted conditional5 minor subdivision approval and preliminary and final major site plan approval with the needed variances and design waivers.

Separately, the Toms River Board of Adjustment rendered a decision on November 4, 2010, which resolved Perlmutter's application for an interpretation of Toms River's zoning ordinance. Specifically, Perlmutter sought a declaration that certain provisions in Chapter 348 of Toms River's "Land Use and Development Regulations" required Jaylin to obtain dimensional variances from the Planning Board. As posed by the Board of Adjustment, it was asked

to interpret whether (1) Township of Toms River Ordinance Section 348-10.27E(10), which requires a minimum of 25% of property located in the Zone RHB remain as unoccupied open space can include the area located within stormwater management basins; and (2) Township of Toms River Ordinance Section 348-10.27E(5), which requires all front setbacks of principal and accessory buildings be 100 feet, does not pertain to stormwater management basins and therefore do not have to comport with the setback requirements in the RHB zone.

 

The Board of Adjustment, after several hearings, concluded that "a stormwater management basin, whether with or without building materials, headwalls, etc. customarily is not considered a building or structure for the purpose and requirements of a setback in the RHB Zone." Furthermore, such stormwater management basins are "unoccupied, grassed, wooded or landscaped area open to the sky, in the same lot with a principal and/or accessory building," and they "shall be included in . . . calculations as unoccupied open space."

C.

In the ensuing months, Perlmutter filed three actions in lieu of prerogative writs, separately attacking (1) the Manchester Planning Board approvals and Manchester Township Ordinance 05-043, (2) the Toms River Planning Board approvals, and (3) the Toms River Board of Adjustment zoning ordinance interpretation. After Jaylin was permitted to intervene in the Toms River Board of Adjustment case, all three actions were consolidated on March 28, 2011.

In a series of orders in June and August 2011, the Law Division conditionally validated the public notice given for the planning board hearings in both municipalities, and affirmed the interpretive action of the Toms River Board of Adjustment. Later, after trial on the remaining issues, the Law Division issued a thirty-four page opinion that (1) invalidated Manchester Ordinance 05-043 and (2) affirmed both planning boards' grants of approvals to Jaylin. The final judgment (later amended for technical reasons) was entered on January 6, 2012. Perlmutter's appeal in No. A-2814-11 followed.

D.

While that land use litigation was pending in the Law Division, Jaylin pursued requisite approvals from the DEP for its project. After several years and multiple stumbling blocks largely the result of an existing northern pine snake6 hibernaculum located on the project site Jaylin and the DEP entered into a stipulation of settlement, which granted Jaylin an individual CAFRA permit on April 18, 2012. Among other things, the settlement (and permit) required that Jaylin enhance the northern pine snake habitat and potential habitat, install a herpetofauna fence on the construction site, and build a linear barrier wall to separate the hibernaculum from the development. The permit also required that Jaylin acquire a contiguous parcel in Manchester of approximately twenty-one acres to serve as northern pine snake habitat, plus other several additional parcels in Manchester totaling approximately 170 acres. One of those other parcels was adjacent to a property that abutted the project site, while the remaining parcels were adjacent to two existing wildlife management areas that contained northern pine snake habitat but were not adjacent to the property. For these newly acquired properties, Jaylin was required to grant the DEP a conservation restriction that would protect and enhance the northern pine snake habitat.

In June 2012, Perlmutter filed a declaratory judgment action in the Law Division against Jaylin and the two planning boards concerning continued vitality of the municipal approvals granted for Jaylin's project. Perlmutter claimed that the approvals were "no longer effective" because the subsequently issued DEP permit for the project included provisions about the acquisition, use, and improvement of extensive off-site northern pine snake habitat enhancement parcels. Furthermore, because the public notices issued in 2010 in connection with the planning boards' hearings did not include the additional lands, such notice was deficient.

On November 16, 2012, Jaylin moved to dismiss the declaratory judgment complaint. The motion did not state whether Jaylin was proceeding under Rule 4:6-2(e)(failure to state a claim upon which relief can be granted) or Rule 4:46-1 (summary judgment). However, extensive materials outside the complaint were presented to the motion judge, which made it more likely that Jaylin was seeking summary judgment. See R. 4:6-2(e) (providing that "[i]f . . . matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment"). In particular, separate letters authored in January 2013 by the respective planning boards' engineers opined that the settlement between the DEP and Jaylin did not require further local review.7

On January 25, 2013, in response to Jaylin's motion (and Perlmutter's cross-motion for sanctions due to discovery delinquencies), the Law Division issued a six-page opinion and order dismissing the declaratory judgment complaint. Notably, the motion court stated:

[A]s an aside, . . . those letters by the administrative authorities in the Townships, while they come to the same conclusion I come to, are not material to my decision in this case, are not necessary to my decision and are, frankly, not a part of it.

Consequently, under Rule 4:6-2(e), the motion court declared Perlmutter's use of a declaratory judgment action procedurally inappropriate, and further concluded as follows:

The settlement agreement between Jaylin and NJDEP included a mitigation agreement requiring a conservation easement across some 200+ acres of land which are not part of Jaylin's development applications before the boards. The fact that Jaylin consented to the mitigation agreement to provide a conservation easement which precludes development on off-tract property, does not change the 43 acre land use development application into a 243+ acre tract. The Manchester and Toms River Boards have no authority over, nor can they condition or require any act or conduct by Jaylin on those off-tract properties. The off-tract settlement agreement between Jaylin and NJDEP does not require Jaylin to resubmit [its] application again to the planning board[s]. Nothing that the NJDEP required of Jaylin in the Settlement Agreement changed or modified the 43 acre development site in any way, much less a material way.

 

Perlmutter's appeal in No. A-2958-12 followed.

E.

Following the January 14, 2013 Yodakis letter to the Manchester Planning Board, and notwithstanding the Law Division's January 25, 2013 order dismissing the declaratory judgment action, Perlmutter filed an "Application for an Appeal/Interpretation" with the Manchester Board of Adjustment under N.J.S.A. 40:55D-70(a) and (b). Perlmutter specifically sought review of "the Administrative decision of Albert D. Yodakis, P.E., the Administrative Officer of the Township of Manchester dated January 14, 2013."

On May 1, 2013, instead of moving before the Manchester Board of Adjustment to dismiss the administrative proceeding, Jaylin filed a Law Division complaint against Perlmutter and the Manchester Board of Adjustment seeking an order declaring "that Defendant/Perlmutter's . . . Request for Appeal/Interpretation is precluded by res judicata."8 Notwithstanding the interlocutory nature of Jaylin's grievance, see Rule 4:69-7, the Law Division treated the matter as a summary proceeding without expressly granting leave to appeal. On June 14, 2013, after considering the parties' written submissions and oral argument, the Law Division declared,

I'm satisfied it's the exact same legal issue. It's one and the same legal issue. Res judicata is right on point. It is the exact issue. There shouldn't be multiple litigations and we may have multiple litigations here . . . . I already determined it's a legal issue regarding whether or not these additional 200 properties [sic] become or transform that 43-acre application into a 243-acre application and . . . I would expect that the administrative body would follow that determination. They'd be bound by it, so I just don't think that there's an issue here that needs resolution.

 

. . . .

 

I'm satisfied that this is a circumstance where the question that would be before the administrative board is a legal question, it's been resolved by the Court in the declaratory judgment action . . . so I am satisfied that the application should be granted on the part of Jaylin Holdings that this would be duplicative litigation on an issue that has already been resolved and is already on appeal.

The memorializing order entered on July 2, 2013, stated: "Defendant/Perlmutter's attempt to proceed before the Defendant/Board must be prohibited as a result of res judicata." Perlmutter's appeal in No. A-5958-12 followed.

II.

A.

We start with Perlmutter's arguments that the Law Division (and the Toms River Board of Adjustment) erred in concluding that (1) the land comprising Jaylin's stormwater management basins was includable within Toms River's requirement of twenty-five percent "[m]inimum unoccupied open space" and (2) the location of Jaylin's stormwater management basins and their appurtenances violate the 100-foot minimum front setback of the RHB zoning district. The trial court concluded that "the plain language of the Ordinance, the purpose of the Ordinance, and the historical interpretation and application of the Ordinance" satisfied the court that "stormwater management basins may be included in the calculation of the requisite 25% unoccupied open space in the RHB zone." For similar reasons, "stormwater management basins are not subject to front yard setback requirements in the RHB Zone." We generally agree with the analysis and conclusion of the trial court.

"'[T]he interpretation of an ordinance is primarily a question of law.'" Columbro v. Lebanon Tp. Zoning Bd. of Adj., 424 N.J. Super. 501, 508 (App. Div. 2012) (quoting Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993)). Tasked to conduct a de novo plenary appellate review, see Bor. of E. Rutherford v. E. Rutherford PBA Local 275, 213 N.J. 190, 211 (2013), "we owe no deference to the legal conclusions reached by the trial court." Bor. of Harvey Cedars v. Karan, 214 N.J. 384, 401 (2013).

A municipal ordinance is entitled to a "general presumption of reasonableness which attends all municipal enactments." H.P. Higgs Co. v. Madison, 188 N.J. Super. 212, 222 (App. Div.), certif. denied, 94 N.J. 535 (1983). When reviewing an ordinance, we "apply the same rules of judicial construction as when construing statutes." AMN, Inc. of N.J. v. S. Brunswick Rent Leveling Bd., 93 N.J. 518, 524-25 (1983). One such rule requires that we interpret a statute to "'effectuate the legislative intent in light of the language used and the objects sought to be achieved.'" Twp. of Pennsauken v. Schad, 160 N.J. 156, 170 (1999) (quoting AMN, Inc., supra, 93 N.J. at 524-25).

The best indication of legislative intent is the language of the legislation, which should be given its ordinary meaning and significance. DiProspero v. Penn, 183 N.J. 477, 492 (2005). We read the pertinent provisions "in context with related provisions so as to give sense to the legislation as a whole[.]" Ibid. Clear and unambiguous plain language should control. Bergen Comm l Bank v. Sisler, 157 N.J. 188, 202 (1999).

"Although our starting point is to 'ascribe to the statutory words their ordinary meaning and significance,' we recognize that sometimes a plain reading will lead to an absurd result that could not have been intended by the Legislature." M.S. v. Millburn Police Dep't, 197 N.J. 236, 250 (2008) (quoting DiProspero v. Penn, 183 N.J. 477, 492-93 (2005)). Our function is not "to 'rewrite a plainly-written enactment of the Legislature.'" DiProspero, supra, 183 N.J. at 492 (quoting O'Connell v. State, 171 N.J. 484, 488 (2002)). Nevertheless, we recognize that "common sense should not be
abandoned when interpreting a statute." A.B. v. Div. of Med. Assistance & Health Servs., 407 N.J. Super. 330, 341 (App. Div.), certif. denied, 200 N.J. 210 (2009).

[In re Casaleggio, 420 N.J. Super. 121, 125 (App. Div. 2011).]

 

Toms River Ordinance Section 348-10.27(E)(10), which dimensionally controls the use of land in the RHB zone, provides in pertinent part:

E. Area, yard and building requirements.

 

. . . .

 

(10) Minimum unoccupied open space: 25%.

 

Markedly, the RHB zone does not require a minimum amount of "open space," but it does require a minimum of twenty-five percent of "unoccupied open space." Toms River Ordinance Section 348-2.3 defines those terms separately:

OPEN SPACE Any parcel or area of land or water essentially unimproved and set aside, dedicated, designated or reserved for public or private use or enjoyment or for the use and enjoyment of owners and occupants of land adjoining or neighboring such open space, provided that such areas may be improved with only those buildings, structures, streets and off-street parking and other improvements that are designed to be incidental to the natural openness of the land.

 

OPEN SPACE, UNOCCUPIED An unoccupied, grassed, wooded or landscaped area open to the sky on the same lot with a principal and/or accessory building. Improved sidewalks, paved paths or other pedestrian ways within an unoccupied open space area, which exceed four feet in width, shall be deducted in determining the unoccupied open space area. Parking area or traffic channelization islands which are not landscaped or which have an area less than 350 square feet shall not be considered as unoccupied open space.

 

At issue is Jaylin's proposed stormwater management system in Toms River, which consisted mainly of excavated depressions with inlet structures at the surface, while other areas would be part of a stormwater system with inlet structures and underground discharge pipes that relied on reinforcing head walls, base structures, and gabions. The anecdotal evidence heard by the Toms River Board of Adjustment, and partially relied upon by the trial court, was that such a system had never been disqualified for inclusion in the calculation of development's twenty-five percent minimum unoccupied open space.

We conclude that, taken in context, among the purposes of the twenty-five percent minimum unoccupied open space is to secure safety from flooding, enhance a desirable visual environment, promote conservation, and prevent urban sprawl and the degradation of the environment. See N.J.S.A. 40:55D-2(b), -2(i), and -2(j). None of the appurtenances proposed to facilitate the land's use for stormwater management militate against these purposes. Indeed, the dimensional attribute of the requirement, rather than being cast as a use provision, counsels in favor of including Jaylin's stormwater management basins as part of its twenty-five percent minimum unoccupied open space on the site. We conclude that this common sense interpretation better fulfills the legislative intent than Perlmutter's literalism.

As for the 100-foot minimum front setback, Toms River Ordinance Section 348-10.27(E)(5)(a) provides in pertinent part:

E. Area, yard and building requirements.

 

. . . .

 

(5) Minimum front setback.

 

(a) Principal and accessory buildings: 100 feet, except along Route No. 9, 120 feet.

 

Perlmutter contends that because Toms River defined "building" expansively as "[a]ny structure used or intended for supporting or sheltering any use or occupancy,"9 and a stormwater management basin is located closer than 100 feet from a front yard line, a variance was required. Presumably, because the stormwater management basin (with or without appurtenances) is "supporting" the shopping center use, it is a "building," which violates the 100-foot setback. We disagree.

An ordinance must not be given an absurd construction, according to its strict letter, but rather one that will advance the sense and meaning fairly deducible from the context. "The reason of the statute prevails over the literal sense of its terms." Lesniak v. Budzash, 133 N.J. 1, 14 (1993) (citation omitted); see also Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir. 1944) (Hand, J., concurring) (stating that "[t]here is no surer way to misread any document than to read it literally"), aff'd sub nom. Gemsco, Inc. v. Walling, 324 U.S. 244, 65 S. Ct. 605, 89 L. Ed. 2d 921 (1945); Carpenter Tech. Corp. v. Admiral Ins. Co., 172 N.J. 504, 521 (2002) (declining to interpret a statute literally where the result would be contrary to public policy and the spirit of the law). Although Toms River's definitions of "building" and "structure" made it susceptible to a seemingly plausible argument that every building is a structure, and vice versa, that is plainly not the case for stormwater management basins. The trial court rightly upheld the Toms River Board of Adjustment's interpretation.

 

 

B.

We next consider Perlmutter's contention that the trial court erred by ruling that a March 16, 2010 DEP denial letter was not part of the administrative record before either planning board, even though it arguably negated specific positive criteria findings of the planning boards when they later granted Jaylin its requested municipal approvals. Perlmutter specifically argues that because all of the testifying experts conditioned their opinions about the application's environmental impact upon a presumption of DEP approval, the findings that the application had a positive, rather than a negative, impact on the MLUL's purpose of environmental protection were contrary to the record. Perlmutter further criticizes the trial court for ruling that the DEP's 2010 denial letter was irrelevant even though both planning boards had relied on an expectation of DEP approval in making their findings.

Perlmutter places excessive stock in the 2010 DEP denial letter, particularly since the project's environmental implications were extensively referenced at both planning boards. In Toms River, the issue of northern pine snake habitat and the wetlands area were noted as being the subjects of a CAFRA application. In Manchester, the planning board heard the same information and knew that Jaylin was engaged in negotiations with the DEP.

When a project that is the subject of an application before a local land use board requires permits from any other governmental agency, it is appropriate for that board to condition its approval on the issuance of such permits. N.J.S.A. 40:55D-22(b). See also Dowel Assocs. v. Harmony Twp. Land Use Bd., 403 N.J. Super. 1, 31-35 (App. Div.), certif. denied, 197 N.J. 15 (2008). The existence of an interim DEP denial letter in no way automatically negates local autonomy to review and, if appropriate, conditionally approve a development application. Given the length and breadth of the respective planning boards' findings and conclusions, we cannot say that the existence of the DEP denial letter so fully eroded those determinations to render them ineffective, much less arbitrary, capricious, or unreasonable.

C.

Perlmutter further trains his sights on the adequacy of Jaylin's proofs vis- -vis its entitlement to certain dimensional variances under N.J.S.A. 40:55D-70(c)(1) and -70(c)(2). He also claims that the Toms River Planning Board's grant of all necessary variances was arbitrary, capricious, and unreasonable.

From what we gather, Perlmutter generally challenges all of the variances and "design waivers" granted by the Toms River Planning Board, but his appellate brief only specifically mentions the project's discordances with respect to minimum front setback, maximum lot coverage by buildings, and parking area landscaping. We are not persuaded by Perlmutter's arguments.

We apply the same standard as the trial court when reviewing a municipal land use agency's action. Fallone Props., L.L.C. v. Bethlehem Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). "Judicial review of the decision of a Planning Board or Board of Adjustment ordinarily is limited. A board's decision 'is presumptively valid, and is reversible only if arbitrary, capricious, and unreasonable.'" New Brunswick Cellular Tel. Co. v. Bor. of S. Plainfield Bd. of Adj., 160 N.J. 1, 14 (1999) (quoting Smart SMR of N.Y., Inc. v. Bor. of Fair Lawn Bd. of Adj., 152 N.J. 309, 327 (1998)). The party challenging the municipal board's decision bears the burden of overcoming the presumption of validity and demonstrating the unreasonableness of the board's action. Toll Bros., Inc. v. Bd. of Chosen Freeholders of Burlington, 194 N.J. 223, 256 (2008).

The reason for this standard is that

public bodies, because of their peculiar knowledge of local conditions, must be allowed wide latitude in their delegated discretion. The proper scope of judicial review is not to suggest a decision that may be better than the one made by the board, but to determine whether the board could reasonably have reached its decision on the record.

 

[Jock v. Zoning Bd. of Adjustment of Wall, 184 N.J. 562, 597 (2005) (citation omitted).]

"A board's resolution of factual issues must stand if supported by sufficient credible evidence in the record." Trust Co. of N.J. v. Planning Bd. of Freehold, 244 N.J. Super. 553, 570 (App. Div. 1990) (citing Rowatti v. Gonchar, 101 N.J. 46, 51 (1985)); see also Cell S., supra, 172 N.J. at 89 ("[T]he substantial evidence standard is analogous to the arbitrary, capricious, and unreasonable standard of review traditionally afforded to decisions of zoning boards under the MLUL.").

N.J.S.A. 40:55D-70(c)(1) permits a variance from a dimensional provision of a zoning ordinance, such as minimum front setback and maximum lot coverage when, by reason of exceptional conditions of the property, strict application of a bulk or dimensional provision would present peculiar and exceptional practical difficulties or exceptional hardship to the applicant. Such exceptional conditions may include the dimensions of the property, topographic conditions, or some other extraordinary or exceptional feature unique to the property. Ibid. Undue hardship does not include personal hardship to the property owner. Jock, supra, 184 N.J. at 590. Rather, it refers to the particular condition of the property. Ibid. The efforts made to bring the property into compliance with the ordinance e.g., attempts to acquire additional land or reconfigure the improvements are factors that must be considered. See Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 30 (2013).

In addition, an applicant for a (c)(1) variance must satisfy the negative criteria. Nash v. Bd. of Adj. of Morris Twp., 96 N.J. 97, 102 (1984). The negative criteria require proof that the variance will not result in substantial detriment to the public good or substantially impair the purpose of the zoning plan. Ibid. The question of whether the variance will cause substantial detriment to the public good "focus[es] . . . on the impact of the variance on neighboring properties." D. Lobi Enters., Inc. v. Planning/Zoning Bd. of Sea Bright, 408 N.J. Super. 345, 358 (App. Div. 2009). With respect to the statutory requirement that the variance not substantially impair the intent and purpose of the zone plan and zoning ordinance, the inquiry "focuses on whether the grant of the variance can be reconciled with the zoning restriction from which the applicant intends to deviate." Lang v. Zoning Bd. of Adj. of N. Caldwell, 160 N.J. 41, 57 (1999). This reconciliation "depends on whether the grounds offered to support the variance . . . adequately justify the board's action in granting an exception from the ordinance's requirements." Id. at 57-58.

N.J.S.A. 40:55D-70(c)(2) permits a variance for a specific property, if the deviation from bulk or dimensional provisions of a zoning ordinance would advance the purposes of the zoning plan and if the benefit derived from the deviation would substantially outweigh any detriment. For a (c)(2) variance, approval must be rooted in the purposes of the zoning ordinance rather than the advancement of the purposes of the property owner. Kaufmann v. Planning Bd. for Warren Twp., 110 N.J. 551, 562-63, (1988). Thus, the positive criteria include proof that the characteristics of the property present an opportunity to put the property more in conformity with development plans and advance the purposes of zoning. Id. at 563-64. As with the (c)(1) variance, the negative criteria include proof that the variance would not result in substantial detriment to the public good or substantially impair the purpose of the zone plan. See Ten Stary Dom P'ship, supra, 216 N.J. at 30.

In granting Jaylin's variances, the Toms River Planning Board painted in somewhat broad strokes. Although it was dealing with at least nine variances and eight "design waivers," it did not individually address the elements of the positive and negative criteria for each variance request. Instead, it concluded that notwithstanding "the opinion of the objector's planner that the regulatory constraints, i.e. pinelands, snake den, and compliance with wetlands regulations, does not necessarily constitute a classic C-1 hardship to warrant the grant of a variance under that analysis," there was "sufficient credible evidence to warrant the grant of the variances under the C-1 analysis." Where it was somewhat more specific, the Toms River Planning Board concluded as follows:

a. . . . The Board acknowledges the testimony of the objector's planner that a reduction in the size of the proposed retail center may reduce some of the relief requested. The Board would mitigate to a large degree the number and character of the variances and design waivers requested by the applicant.

 

. . . .

 

c. The Board finds that the environmental constraints mandated that the bulk of the improvements be shifted to the easterly portion of the site adjacent to Northampton Blvd. In addition, the site location on a municipal boundary line also results in the lot coverage, parking, and the ground sign setback variances on Northampton Blvd right-of-way.

 

. . . .

 

j. The minimum front yard setback variance, where the applicant proposes 15.8 feet and 100 feet is required, the Board credits the testimony of the applicant's planner and the engineer that the balance of the building except for the bump out for the Garden Center is set back approximately 62 to 63 feet. The Board finds that a small portion of the entire building sits 15.8 feet from the roadway. The Board finds that this warrants a C-1 hardship variance . . . .

 

We conclude that the Toms River Planning Board's expressed rationale is not sufficient to satisfy the positive criteria required for a (c)(1) variance. First, reliance upon the municipal boundary as an element of hardship is unwarranted. We recognize that the municipal boundary, in the context of the unified nature of the overall application, cannot be ignored. However, it serves only as a lot line, and nothing about its special character of separating the municipalities was advanced to suggest a unique or exceptional condition of the property, particularly in light of the size of the building and parking yard proposed for Toms River and the seventeen acres available to accommodate them. Furthermore, although acknowledging the issue of size, the Planning Board failed to "consider whether the structure proposed is so unusually large that its size, rather than the unique condition of the property, causes the need for a variance." Lang, supra, 160 N.J. at 56.

On the other hand, the Toms River Planning Board also found that Jaylin's variance requests satisfied the criteria necessary for a (c)(2) variance. On that score, the Toms River Planning Board concluded that "by protecting the environment by positioning the structures in such a manner to comply with CAFRA and DEP permits and to comply with significant stormwater management regulations," and "[t]the preservation of and protection of wetlands and pine snake habitat has a positive impact on the environment," which are traditional purposes of the MLUL. The Toms River Planning Board further concluded:

Overall, the Board finds that there is no significant negative impact on the site or the general public good and welfare given the location of the parcel along a commercial State highway and adjacent to industrial sites.

 

The memorializing resolution, fairly read, contains sufficient findings to support its conclusion to grant the (c)(2) variances. In analyzing the entire project, the Toms River Planning Board was justified in approving Jaylin's variances because, in essence, it focused "on the characteristics of the land that present an opportunity for improved zoning and planning that will benefit the community." Kaufmann, supra, 110 N.J. at 563. This organic approach is the hallmark of legitimate decision-making by local land use agencies. See Pullen v. Twp. of S. Plainfield Planning Bd., 291 N.J. Super. 1, 9 (App. Div. 1996) (noting the requirement that "a variance cannot be considered in isolation, but must be considered in the context of its effect on the development proposal, the neighborhood, and the zoning plan"). We are not at liberty to substitute our views for those of this planning board, even if we were inclined to do so. See Davis Enters. v. Karpf, 105 N.J. 476, 485 (1987) ("The proper scope of judicial review . . . 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.").

D.

We next review Perlmutter's claim that Jaylin required a use variance for its development in Manchester Township. See N.J.S.A. 40:55D-70(d). Perlmutter argues that the trial court erred by disregarding its ruling that shopping centers were a distinct use that Manchester had failed to authorize in the HD-3 zone. Perlmutter supports the trial court's invalidation of Ordinance 05-043 insofar as it found (1) that shopping centers were originally permitted only in other zoning districts, (2) that Ordinance 05-043 would have established shopping centers as a new use in HD-3, and (3) that Ordinance 05-043 thus triggered MLUL public notice requirements, N.J.S.A. 40:55D-62.1, which Manchester failed to satisfy. However, Perlmutter argues that instead of respecting its legal conclusion that shopping centers were not originally permitted in the HD-3 zone, the trial court found instead that the predecessor ordinance did not treat a shopping center as a use distinct from the individual uses that it encompassed and Jaylin's application presented a permitted use. According to Perlmutter, the court reached that incorrect result by disregarding the original ordinance's plain language and by improperly relying instead on the municipality's history of failing to enforce it.

Because the interpretation of Manchester's ordinance is a matter of law, we analyze the issue de novo. Zabilowicz v. Kelsey, 200 N.J.507, 512-13 (2009). We owe no deference to the trial court's interpretation of the law. State v. Parker, 212 N.J.269, 278 (2012); Mountain Hill, L.L.C. v. Twp. Comm. of Middletown, 403 N.J. Super.146, 193 (App. Div. 2008), certif. denied, 199 N.J.129 (2009).

Jaylin's property in Manchester is located in the

HD-3 Highway Development zoning district, which allows permitted uses "[a]s specified in Schedule E, CAFRA Area and Pinelands National Reserve Area Nonresidential Zoning District Permitted and Conditional Use Schedule."10 Schedule E is a chart containing eleven sections, one of which is denominated as "Retail Trade." Within each section is a list of uses, all identified with their corresponding standard industrial classification (SIC) code numbers. A footnote attached to Schedule E states, "Specific SIC Codes listed for a zone indicate the only permitted use within the applicable SIC classification." Unlike some other municipalities, Manchester does not expressly prohibit having multiple principal uses on a lot or in a building in the HD-3 zone.11 Cf. Nuckel v. Bor. of Little Ferry Planning Bd., 208 N.J. 95, 103 (2011) (interpreting an ordinance that prohibited more than one principal use on a lot); see also Cox & Koenig, New Jersey Zoning & Land Use Administration 10-1 at 271 (2014) (stating that "very often zoning ordinances will prohibit more than one principal use on the same lot").

The Retail Trade section of Schedule E separately lists ten permitted uses in the HD-3 zone, including "building materials, hardware, garden supply; retail nurseries; general merchandise stores; food stores; auto & home supply stores; apparel & accessory stores; home furniture, furnishings & equipment stores; eating places; eating places (w/liquor license); and miscellaneous retail." Conspicuously absent are "plazas, shopping centers, and neighborhood shopping centers," which are expressly stated as permitted uses in other zoning districts as provided by Manchester's "Schedule G, Pinelands Area Nonresidential Zoning District Permitted and Conditional Use Schedule."12

The trial court concluded that notwithstanding the omission of a shopping center use in the HD-3 zone, the Manchester zoning ordinance did not bar Jaylin's clustering of separate retail uses into one Supercenter and Garden Center. Instead, relying upon Manchester's past benign neglect, the trial court found that "shopping complexes, be they centers or plazas, were considered construction modalities and not uses." Thus, because "[t]he various retail uses all being permitted and housed within one building providing general retail merchandise sales, the court is satisfied the Jaylin development application was properly before the Manchester Planning Board for a permitted use."

The trial court's conclusion in this respect flies directly in the face of its earlier declaration, in striking Ordinance 05-043, that "[t]he plain language of the ordinance clearly states that these new uses [ shopping centers, shopping plazas, and neighborhood shopping centers ] are being added as permitted in the particular zones." Furthermore, in relying upon N.J.S.A. 40:55D-62.1 to invalidate Ordinance 05-043, the trial court found that Ordinance 05-043,

by its clear language, unequivocally modifies the permitted uses in the zone. While shopping centers and plazas may not have been considered as uses before the ordinance amendment, they were characterized as permitted uses in the applicable zones after the enactment of the ordinance.

Because we cannot reconcile these contradictions, and in light of the unambiguous plain language of Manchester's predecessor ordinance, we disagree with the trial court.

As we have already noted, our task is to ascertain the governing body's intent, illuminated by its chosen language, and to give the words of the local legislation "'their generally accepted meaning.'" State v. Marquez, 202 N.J. 485, 499 (2010) (quoting N.J.S.A. 1:1-1). Although resort to historical application of particularized legislation is not forbidden, "historical practice alone rarely proves the correctness of a legal proposition." Henry v. N.J. Dept. of Human Servs., 204 N.J. 320, 345 (2010) (Rabner, C.J., concurring).

Further, when construing the legislation's words, every effort should be made to avoid rendering any part of the ordinance superfluous. See Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 587 (2013) (noting "bedrock assumption" that Legislature did not use meaningless or unnecessary language). We ascribe a plain, purposeful intent by the governing body in expressly providing for "plazas, shopping centers, and neighborhood shopping centers" in some zoning districts, thereby prohibiting them by omission in others. Had Manchester's governing body meant to permit shopping centers in the HD-3 zone, it could have used the words it inserted in Schedule G. Its decision not to do so is entitled to respect.

"Courts read every word in a statute as if it was deliberately chosen and presume that omitted words were excluded purposefully." 3A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction 72:3 at 802 (7th ed. 2010); see Lee v. Ashcroft, 368 F.3d 218, 223 (3d Cir. 2004) (noting that "'where Congress includes particular language in one section of the statute but omits it in another section of the same act, it is generally presumed that Congress acts intentionally and purposely in the disparate
 
 
 
 
 
 
inclusion or exclusion'" (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 432, 107 S. Ct. 1207, 1213, 94 L. Ed. 2d 434, 448 (1987))).

 

[State v. Scott, 429 N.J. Super. 1, 6-7 (App. Div. 2012), certif. denied, 214 N.J. 117 (2013).]

 

Moreover, the ordinance provision, "It is intended that in interpretation of this Chapter any use not specifically permitted shall be deemed prohibited," leaves nothing to the imagination.

The unambiguous plan of Manchester's zoning ordinance is to allocate uses, not construction modalities, by reference to several schedules. There cannot be any confusion in recognizing that the HD-3 zone's schedule of permitted uses is bereft of any designation that embraces a shopping center, much less a Wal-Mart Supercenter with Garden Center. If the ordinance were to be read as broadly as the trial court read it, the use designations in Schedule G become mere surplusage. The obvious care and attention that was taken by Manchester's governing body when it adopted the discrete use designations in Schedules E and G cannot be written out of existence by wordsmithing.

Since Jaylin was clearly proposing a shopping center use for its Manchester holdings, and not a retail establishment for the sale of general merchandise, it was obliged to obtain a use variance, which was beyond the jurisdiction of the Manchester Planning Board, see Najduch v. Twp. of Independence Planning Bd., 411 N.J. Super. 268, 277 (App. Div. 2009) (noting the exclusive jurisdiction of boards of adjustment with respect to N.J.S.A. 40:55D-70(d) variances and their ancillary jurisdiction pursuant to N.J.S.A. 40:55D-76(b)), and was neither applied for nor made the subject of public notice. Accordingly, all development approvals obtained from the Manchester Planning Board are void and shall be vacated.13

E.

In summary, we affirm the Law Division in No. A-2814-11 in all respects, except for its determinations regarding (1) the (c)(1) dimensional variances in Toms River and (2) the (d)(1) use variance in Manchester Township. The matter is remanded solely for the entry of a judgment vacating the November 1, 2010 Manchester Planning Board resolution with respect to Jaylin's development application.

 

III.

We now address the propriety of the Law Division's dismissal of Perlmutter's declaratory judgment action challenging the vitality of the municipal approvals following the issuance of the DEP permit that added almost two hundred habitat enhancement acres to the mix. In so ordering, the court observed that Perlmutter did not partake of the "carefully delineated system for providing for appeals of various zoning and land use determinations, with time periods for action and proper jurisdiction for appeal." Consequently, "appeal[s] of the planning board approvals . . . is appropriately challenged by an action in lieu of prerogative writs and not in the normal course by a declaratory judgment action." Thus, "there is no procedural basis for the relief sought in the complaint." For the most part, we agree with the trial court.

The MLUL contains a delicately calibrated system of local dispute resolution, lodged mainly in N.J.S.A. 40:55D-70(a), -70(b), and -72(a). These provisions allow an interested party to access a local forum the board of adjustment to air grievances arising from "error in any order, requirement, decision or refusal made by an administrative officer based on or made in the enforcement of the zoning ordinance." N.J.S.A. 40:55D-70(a). They also permit an interested party to reach a board of adjustment for a decision where that party is "affected by any decision of an administrative officer of the municipality based on or made in the enforcement of the zoning ordinance or official map." N.J.S.A. 40:55D-72(a).

Perlmutter indubitably was aware of this available forum because in 2010, he had previously invoked N.J.S.A. 40:55D-70(b) to seek the Toms River Board of Adjustment's interpretation of the proper zoning treatment of stormwater management basins. When Perlmutter became aware of the DEP permit, either around the time it was issued (April 18, 2012) or when the DEP published its notice of the final settlement and permit issuance (May 23, 2012), he had the opportunity to demand each respective municipality's administrative official to weigh in as to the permit's effect, if any, on the previous approvals. We know that on June 5, 2012, Perlmutter filed a notice of appeal with us in Pinelands Preservation Alliance v. State of New Jersey Department of Environmental Protection, Docket No. A-4880-11, seeking review of the DEP's actions, yet he sought no relief from the respective boards of adjustment. Instead, the next day, he filed the declaratory judgment action against the two planning boards, thereby circumventing the MLUL and eluding the creation of a local record that would be readily reviewable in an action in lieu of prerogative writs.

Inexplicably, neither Jaylin nor the planning boards moved to dismiss the action for failure to exhaust administrative remedies or to transfer (or remand) the matter pursuant to Rule 1:13-4(a). Had a transfer been ordered, Perlmutter would have had the opportunity to learn many of the facts he sought in discovery as part of the declaratory judgment action. This posture left the Law Division in an understandably uneasy and hamstrung decisional environment, all the result of Perlmutter's race to the courthouse. Calling a (stealth) action in lieu of prerogative writs a declaratory judgment action is no solution. See R. 4:69-5 (providing that actions in lieu of prerogative writs "shall not be maintainable as long as there is available a right of review before an administrative agency which has not been exhausted").

Here, the question presented by Perlmutter involves interpretation of factual issues as applied to a legal determination. The full scope of how, when, and to what extent the DEP permit would impact local land use concerns, including the nature of any changes to the land through the installation of improvements or otherwise, were appropriate for exploration at a hearing. Only then could each board of adjustment determine whether the DEP conditions required Jaylin to return to the respective planning board. For example, the Toms River Planning Board imposed the following caveat in its memorializing resolution:

The applicant shall obtain all approvals required by any Federal, State, County, or municipal agencies having jurisdiction over the development. Upon receipt of any such approvals, the applicant shall [provide] a copy of the permits/approvals to the Board. In the event that any other agencies require changes to the plans approved by the Board, the applicant shall reapply to the Township Planning Board for approval of that change.

 

[Emphasis added.]

 

The Manchester Planning Board's memorializing resolution similarly required the following:

That the [a]pplicant resubmit this entire proposal should there be any substantive deviation from this Resolution, the technical review letters annexed hereto, the submitted plans and documents and/or representations of [a]pplicant and its professionals which are hereby made a part hereof and shall be binding upon the applicant.

 

[Emphasis added.]

 

But Perlmutter never invoked the MLUL, and went straight to court, presumably because he viewed the administrative officers' silence as something other than a decision, or he just was impatient. Either way, there was no excuse for failing to exhaust administrative remedies in these zoning cases.

If Perlmutter filed timely appeals with the boards of adjustment and had been denied, the Law Division would have had the benefit of reviewing the determinations with a developed factual record produced at the local level as well as a written explanation produced by individuals familiar with the municipalities and their land use policies. See First Montclair Partner, L.P. v. Herod Redev. I, L.L.C., 381 N.J. Super. 298, 302 (App. Div. 2005) ("municipal bodies are composed of local citizens who are far more familiar with the municipality's characteristics and interests and therefore uniquely equipped to resolve such controversies") (citing Ward v. Scott, 16 N.J. 16, 23 (1954)).

Such an appeal must be brought to the board of adjustment within twenty days of "the date an interested party knows or should know of the action[.]" Sitkowski v. Zoning Bd. of Adj. of Bor. of Lavallette, 238 N.J. Super. 255, 260 (App. Div. 1990) (citing Trenkamp v. Twp. of Burlington, 170 N.J. Super. 251, 269 n.1 (Law Div. 1979)). This time limit protects individuals from "the threat of unrestrained future challenge." Ibid. We view the administrative officers' lack of action in this case to be "refusals" under N.J.S.A. 40:55D-70(a), which, in any event, were ignored by Perlmutter's filing of the declaratory judgment action. Accordingly, in No. A-2958-12, because Perlmutter failed to exhaust available administrative remedies, the dismissal of the declaratory judgment action is affirmed.14

IV.

We last address, briefly, Perlmutter's appeal from the Law Division's order prohibiting the Manchester Board of Adjustment from considering Perlmutter's January 31, 2013 Application for an Appeal/Interpretation. The local proceeding was precipitated when, during the declaratory judgment litigation, Yodakis, the Manchester administrative officer, issued a letter on January 14, 2013, which stated, in part, that the provisions of the DEP settlement "do not in any way materially alter the plans or representations which were made to the Board." The letter did not make reference to the Manchester Planning Board's memorializing resolution requiring a resubmission if there were a "substantive deviation from the [r]esolution, the technical review letters annexed hereto, the submitted plans and documents and/or representations of [a]pplicant and its professionals which are hereby made a part hereof and shall be binding upon the applicant."

The Law Division prohibited the board of adjustment proceeding based upon its conclusion that it would be duplicative and precluded "as a result of res judicata." Since the court had just a few months earlier disposed of the nearly identical issues in the declaratory judgment action, the fortuitous Yodakis letter should not, in the opinion of the Law Division, serve to give Perlmutter a second bite at the apple.

We view the issues in No. A-5958-12 as moot in light of our decision that Jaylin's Manchester Planning Board approvals are void and must be vacated. Perlmutter's N.J.S.A. 40:55D-70(a) and (b) application sought remedies vis- -vis the Manchester Planning Board's approvals, which are now unnecessary. We have long avoided resolving issues in the abstract and deciding moot cases. N.J. Tpk. Auth. v. Parsons, 3 N.J. 235, 240 (1949). "An issue is 'moot' when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." Greenfield v. N.J. Dep't of Corrs., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (citation omitted). Because a remand of Perlmutter's application to the Manchester Board of Adjustment would be superfluous, we need not address it. If Jaylin submits an application to the Manchester Board of Adjustment for a use variance and associated approvals under N.J.S.A. 40:55D-76(b), Perlmutter will have the opportunity to raise public notice and other concerns related to the DEP permit in the board of adjustment. Accordingly, we dismiss the appeal in No. A-5958-12.

V.

By way of final summary, we affirm in part and reverse in part in No. A-2814-11. We affirm in No. A-2958-12. We dismiss in No. A-5958-12.

 

1 These appeals concentrate on the myriad contested issues that arise under the Municipal Land Use Law (the MLUL), N.J.S.A. 40:55D-1 to -136. In a separate consolidated appeal, Pinelands Preservation Alliance v. State of New Jersey Department of Environmental Protection, Docket No. A-4880-11, we address the parties' disputes that involve Jaylin's application to the Department of Environmental Protection (the DEP) for an individual permit under the Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to -21.

2 The minor subdivision would be of lot 4, a parcel of 1.68 acres. The application proposed to consolidate 0.533 acres of lot 4 with the rest of the property, thereby reducing lot 4, which already had less lot area than the three acres required by the Manchester zoning ordinance, to approximately 1.14 acres.

3 The record does not readily indicate when Jean T. Varelli died. For ease of reference, we will generally refer to the developer solely as Jaylin.

4 The Toms River Planning Board's memorializing resolution made the approvals subject to, among other things, "NJDEP CAFRA approval if required."

5 The Manchester Planning Board's memorializing resolution made the approvals subject to, among other things, "all other approvals with respect to [t]his application [from] any federal, state, county or municipal agency having jurisdiction over same, including but limited to the following: 'a. NJDEP . . . CAFRA[.]'"

6 The northern pine snake is listed as a "threatened" species in New Jersey. N.J.A.C. 7:25-4.17 (list providing conservation status of New Jersey's indigenous nongame wildlife species).

7 On January 14, 2013, Albert D. Yodakis, P.E. describing himself as "the Board's Administrative Officer" advised the Manchester Planning Board that the provisions of the DEP settlement "do not in any way materially alter the plans or representations which were made to the Board." Furthermore, Yodakis claimed that the settlement only required the applicant "to acquire and preserve offsite properties" and "the stipulations for these lands outlined in the settlement agreement do not require Jaylin Holdings to perform any development on these properties which would necessitate an application to the Planning Board." On January 18, 2013, Alan Dittenhofer, P.E., gave substantially the same advice to the Toms River Planning Board. The record is silent with respect to any action or inaction of each planning board upon receiving these letter-opinions.

8 We liken Jaylin's action as one in lieu of prerogative writs because it was essentially seeking a modern remedy akin to the ancient (and now abolished) common law writ of prohibition. See Swanson v. Swanson, 8 N.J. 169, 181 (1951).

9 We note that the MLUL utilizes a more sophisticated and logical definition of a building: "'Building' means a combination of materials to form a construction adapted to permanent, temporary, or continuous occupancy and having a roof." N.J.S.A. 40:55D-3. However, Toms River Ordinance Section 348-2.1 provides, "Whenever a term which is defined in [the MLUL] . . . is used in this article, such term is intended to include and have the meaning set forth in the definition of such term found in said statute and rules, in addition to the definition for such term which may be included in [Section] 348-2.2 of this article, unless the context clearly indicates a different meaning." Finally, we observe that in May 2013, Toms River amended its definition of building to match the MLUL's.

10 The Manchester zoning ordinance is found in its "Municipal Land Use and Development Regulations Chapter" of the Manchester Township Code. One section of that chapter provides: "It is intended that in interpretation of this Chapter any use not specifically permitted shall be deemed prohibited."

11 The Manchester zoning ordinance defines "Use or Uses, Principal" as "the primary or main purpose for which a lot or building is being utilized."

12 The Manchester zoning ordinance specifically defined a "Shopping Center" as "a group of commercial establishments planned, developed and managed as a unit in utilizing such common facilities as customer parking areas, pedestrian walks, truck loading and unloading space, and utilities and central sanitary treatment facilities."

13 For this reason, it is unnecessary for us to address the questions of (1) whether the Manchester Planning Board grant of minor subdivision approval was arbitrary, capricious, or unreasonable because it allegedly "exacerbated a preexisting nonconforming lot" and (2) the adequacy of the public notice for the Manchester Planning Board hearings. To the extent that Perlmutter challenges the adequacy of the public notice for the Toms River Planning Board hearings, we conclude that his argument on that issue is meritless. R. 2:11-3(e)(1)(E).

14 It is well settled that the propriety of the result reached in the Law Division controls the result on appeal, not the rationale given for that result. See State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011) ("We are free to affirm the trial court's decision on grounds different from those relied upon by the trial court.").