NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1388-17T1
A-Z VENUE MANAGEMENT, LLC, and ZACHARY LUBCHANSKY,
Plaintiffs-Respondents,
v.
ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF WEST AMWELL and THE TOWNSHIP OF WEST AMWELL,
Defendants-Appellants. _________________________________
Argued January 8, 2019 – Decided July 15, 2019
Before Judges Accurso and Vernoia.
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L- 0060-17.
John R. Lanza and Stewart P. Palilonis argued the cause for appellants (Lanza & Lanza, LLP, attorneys for appellant Township of West Amwell; Stewart P. Palilonis, attorney for appellant Zoning Board of Adjustment of the Township of West Amwell; John R. Lanza and Stewart P. Palilonis, on the joint briefs). Arnold C. Lakind argued the cause for respondents (Szaferman Lakind Blumstein & Blader PC, attorneys; Arnold C. Lakind, of counsel and on the brief).
PER CURIAM
In this zoning dispute, defendants Zoning Board of Adjustment of the
Township of West Amwell (the Board) and the Township of West Amwell (the
Township) appeal from the Law Division's October 20, 2017 order reversing
the Board's denial of plaintiffs A-Z Venue Management, LLC, and Zachary
Lubchansky's conditional use application. We affirm.
I.
At issue in this case is whether plaintiffs' proposed use of a property
satisfies certain criteria embodied in two municipal ordinances. Plaintiffs are
the contract purchasers of Brook Mill Farm (the property). 1 The property is
approximately 13.8 acres and contains several buildings, including a main
estate house, a "cottage house," a barn, a garage, a tennis court, a gazebo, and
an in-ground pool. The Alexauken Creek, a stream protected by the New
Jersey Department of Environmental Protection, bisects the property. The
property is situated in an RR-5 (Residential Rural) Zone.
1 Lubchansky testified before the Board that the contract to purchase the property is contingent on the approval of the conditional use.
A-1388-17T1 2 The property's seller rented it semi-annually for weddings and family
reunions, and plaintiffs intend to continue to use the property as a reception
venue. Plaintiffs contacted the Township in March 2015 to confirm that this
proposed use was acceptable. Plaintiffs received no written response from the
Township, but conversations with a Township official left plaintiffs with the
impression that their proposed use was permitted. Plaintiffs thereafter began
to host receptions on the property.
In April 2016, plaintiffs received a letter from the Township stating that
their operation of a "'Bed and Breakfast' or 'Assembly' use" was never
approved by the Board, and that without such approval, plaintiffs' use violated
the municipal code. The letter stated that plaintiffs could seek a conditional
use approval from the Board to continue their use of the property as a
reception venue.
Plaintiffs sought approval for their proposed use as an "assembly use," a
conditional use for property in RR-5 zones. "Assembly" is defined by
Township of West Amwell, N.J., Land Development Ordinance 109-4 (Nov.
18, 2015) (hereinafter Ordinance 109-4) as:
A use which is a permanent facility, building, structure, or installation which is providing for civic, educational, political, religious or social assemblage purposes. This term shall include nonprofit or for-
A-1388-17T1 3 profit facilities and shall include, but may not be limited to, houses of worship, banquet facilities, lodges, fraternal organizations, civic organizations and funeral homes.
Further, Township of West Amwell Land Development Ordinance 109-104
(Nov. 18, 2015) (hereinafter Ordinance 109-104) mandates that "[p]laces of
assembly . . . shall adhere to the following" conditional use requirements:
A. The minimum lot size shall be five acres, at least four of which shall be buildable.
B. Principal or accessory buildings shall be located no less than [seventy-five] feet from any front, side or rear property line or within the building setbacks for the zoning district, whichever is greater.
C. Maximum lot coverage shall be [thirty-five percent].
In May 2016, plaintiffs filed a bifurcated "Application Form for a
Variance/Appeal/Interpretation" seeking "[p]ermitted use as [a]ssembly
[u]se."2 See N.J.S.A. 40:55D-76(b). The Board held three hearings on the
application.
2 In September 2016, the Township entered into a Consent Interim Agreement with plaintiffs and the property's owner that the Chancery Division entered as a final consent order on October 25, 2016. In pertinent part, the consent order allowed plaintiffs to host "weddings and special events" at the property until October 31, 2016, after which plaintiffs would require "zoning or [c]ourt approval."
A-1388-17T1 4 Plaintiffs argued the property qualified for use as a "banquet facilit[y]"
within the meaning of Ordinance 109-4. Plaintiffs described that wedding
receptions and reunions were held under a tent temporarily erected over a
tennis court. Plaintiffs asserted that, collectively, "the whole facility"
constituted "a permanent structure" because even though the banquets held on
the property primarily took place under the tent on the tennis court, "there are
other locations that could be used for a banquet." Plaintiffs rent out both
homes on the property when a reception is held, noting that the "main estate
house" is "especially suitable for a bridal suite," and that the wedding party
will reside in the homes "during the events." However, plaintiffs clarified that
the "homes are strictly for the guests staying in them," the bathrooms and
kitchens in both homes are not used during receptions, and caterers and
portable bathroom facilities are brought onto the property to accommodate
receptions. Plaintiffs' expert witness, James Miller, a certified planner,
testified that he believed the tennis court on the property constituted a
"structure," and that although the receptions "primarily" take place on the
tennis court, he believed the "whole facility is a permanent structure."
Additionally, plaintiffs argued that the property met Ordinance 109-
104's conditional use requirements because the evidence showed the property
A-1388-17T1 5 contains 5.6 "buildable" acres, the largest contiguous tract of which is 3.7
acres. Plaintiffs acknowledged that a pool deck, barn, and gazebo violated
Ordinance 109-104(B)'s seventy-five-foot setback requirement, but agreed to
remove them in order to comply with the ordinance.3 Additionally, plaintiffs
presented evidence showing that the property's lot coverage was six percent,
well within Ordinance 109-104(C)'s thirty-five percent limit.
The Township opposed plaintiffs' application, arguing that Ordinance
109-4 required the "assembly" use be contained within a permanent building or
permanent structure. The Township argued that because the assembly took
place under a tent temporarily erected over the tennis court, plaintiffs failed to
show the use would be contained within a permanent building or permanent
structure. The Township also argued plaintiffs' proposed use violated
Ordinance 109-104(A) because the ordinance required four contiguous
"buildable" acres, and the property's largest contiguous tract of "buildable"
acreage was only 3.18 acres.
Alternatively, plaintiffs argued that if the Board adopted the Township's
interpretation of Ordinance 109-104, they had presented evidence establishing
3 As plaintiffs agreed to remove these offending features, plaintiffs' compliance with Ordinance 109-104(B) is not an issue in this appeal.
A-1388-17T1 6 an entitlement to a conditional use variance. See N.J.S.A. 40:55D-70(d)(3).
Russell Smith, plaintiffs' engineering and planning expert, testified that
granting plaintiffs a variance from Ordinance 109-104(A)'s buildable area
requirement would have no impact on the surrounding properties. He testified
that plaintiffs did not plan to build any new buildings or structures on the
property, and that there was ample space for reception attendees throughout
the property. The Township, however, argued plaintiffs should not be granted
a conditional use variance because the noise generated from plaintiffs' events
was detrimental to the neighboring residences. Several members of the public
appeared in opposition to plaintiffs' application and voiced displeasure with
the noise created by plaintiffs' events.
The Board denied plaintiffs' application. The Board interpreted
Ordinance 109-4 to require "a permanent structure in which the assembly
occurs." Based on this interpretation, the Board determined that the tent that is
attached to the tennis court during a reception did not constitute a permanent
structure and did not properly contain the use. Further, the Board found that
"without the tent, which is not a permanent [structure], [the property] wouldn't
be suitable for assembly." The Board determined that although there were
other permanent buildings on the property, such as the main estate house and
A-1388-17T1 7 the cottage house, the testimony established that "none of those structures were
good uses for assembly" or that "there could be an assembly in those
buildings." The Board rejected plaintiffs' position that the entire property
constituted a "facility" within the meaning of Ordinance 109-4: plaintiffs'
evidence showed the assemblies were not held in the buildings and plaintiffs
required the assistance of third-party vendors to provide food, seating, and
bathroom facilities during the receptions. The Board concluded that "all of the
buildings together as a collective . . . don't support . . . any assembly use," and
determined plaintiffs failed to establish their use of the property qualified as an
"assembly" use.
The Board also found the property failed to satisfy Ordinance 109-104's
conditional use requirements. The Board interpreted Ordinance 109-104(A) to
require that the assembly use take place within four contiguous buildable
acres, and plaintiffs' evidence showed the property's largest contiguous tract of
buildable land is only 3.7 acres. Additionally, the Board found that plaintiffs
could not be granted a conditional use variance because the noise generated by
plaintiffs' use was detrimental to the surrounding area.
Plaintiffs filed a complaint in lieu of prerogative writs, claiming the
Board "incorrectly interpreted the criteria to be used to determine if a use is an
A-1388-17T1 8 'assembly use'" under Ordinance 109-4,4 as well as "improperly determined"
that Ordinance 109-104(A) required four contiguous buildable acres. 5
Plaintiffs argued in the alternative that if the court adopted defendants'
interpretation of Ordinance 109-104 as requiring four contiguous buildable
acres, then the Board also erred by denying plaintiffs a conditional use
variance based on irrelevant and inappropriate criteria. See N.J.S.A. 40:55D-
70(d)(3).
The court heard argument and rendered an oral decision reversing the
Board's determination. The court interpreted "assembly" under Ordinance
109-4 to require only a permanent facility, and found the term "permanent" did
not modify the words "building, structure, or installation." However, the court
noted that even if the word "permanent" modified "facility, building, structure,
4 Plaintiffs conceded before the Board that if their use did not satisfy Ordinance 109-4's definition of "assembly," they would have difficulty proving the necessary criteria to be granted a use variance pursuant to N.J.S.A. 40:55D-70(d)(1). 5 Plaintiffs also asserted that defendants were equitably estopped from proscribing the intended use of the property because the Township had been on notice of the use. The court did not decide the matter on this issue, and neither party has addressed the issue on appeal. We therefore deem the argument waived. See Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008) (finding an issue not briefed on appeal is deemed waived); see also Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2019).
A-1388-17T1 9 [and] installation," it was "satisfied that this proposed use here, banquet
facility, is conducted in large part in or on permanent structures, including the
main estate house, the cottage, [and] the tennis court itself where the tent is
constructed."
The court refused to adopt defendants' interpretation of Ordinance 109-4
requiring that the permanent structure "contain" or "house" the use. The court
determined the Board's interpretation was "reading language into the
ordinance" that "is just not there," and found that "the fact that the main
reception occurs . . . in a tent . . . is [not] enough to . . . declare that this
proposed use does not meet the definition of an . . . assembly use." Instead,
the court interpreted "facility" as "[s]omething designed, built or installed to
afford a specific convenience or service," and found that "even though the
main use . . . might take place in a tent . . . the tennis court surface itself is a
structure of sorts, a facility." The court adopted plaintiffs' position, found that
"the whole piece of property with all the things that were built on it mee ts the
definition of a facility," and concluded that plaintiffs' use satisfied Ordinance
109-4.
The court also declined to adopt the Board's interpretation of
Ordinance 109-104(A). Rather, it held the ordinance did not require a
A-1388-17T1 10 contiguous tract of four "buildable" acres. Therefore, the court found
plaintiffs' evidence that the property contained 5.6 non-contiguous "buildable"
acres satisfied Ordinance 109-104(A). Based on its finding plaintiffs satisfied
Ordinance 109-104's requirements, the court found it unnecessary to determine
whether plaintiffs were entitled to a conditional use variance.
The court reversed the Board's determination, granted plaintiffs'
application, issued an order memorializing its decision, and remanded the
matter to "the [Board] and/or Planning Board[] for such further proceedings as
may be required." This appeal followed.
Defendants submit the following arguments for our consideration:
POINT ONE
THE TRIAL COURT ERRED IN INTERPRETING THE ORDINANCE, AND THE INTERPRETATION OF THE ZONING BOARD OF ADJUSTMENT SHOULD BE GIVEN DEFERENCE.
POINT TWO
THE ZONING BOARD OF ADJUSTMENT WAS CORRECT IN DETERMINING THAT AN "ASSEMBLY USE" REQUIRES A PERMANENT BUILDING FOR HOUSING THE USE, AND THAT THE PROPERTY TO BE SUBJECTED TO SUCH A USE MUST HAVE AT LEAST FOUR CONTIGUOUS BUILDABLE ACRES.
A-1388-17T1 11 POINT THREE
THE TRIAL COURT ERRED IN FAILING TO ADDRESS THE NEGATIVE CRITERIA OF RESPONDENTS' APPLICATION.
POINT FOUR
THE BOARD OF ADJUSTMENT WAS JUSTIFIED IN REJECTING RESPONDENT[S'] CONDITIONAL USE VARIANCE APPLICATION FOR A PLOT OF LAND WITH LESS THAN FOUR CONTIGUOUS BUILDABLE ACRES.
II.
A zoning board's decisions "enjoy a presumption of validity, and a court
may not substitute its judgment for that of the board unless there has b een a
clear abuse of discretion." Price v. Himeji, LLC, 214 N.J. 263, 284 (2013). A
zoning board abuses its discretion, for example, when its decision to grant or
deny a conditional use application is premised upon the misinterpretation of a
municipal ordinance. See Adams v. Delmonte, 309 N.J. Super. 572, 575 (App.
Div. 1998) (holding the zoning board misinterpreted the applicable conditional
use ordinance when the zoning board allowed the defendant to operate a septic
tank cleaning business out of his home as a "home occupation"). "[T]he action
of a board will not be overturned unless it is found to be arbitrary and
capricious or unreasonable, with the burden of proof placed on the plaintiff
A-1388-17T1 12 challenging the action." Grabowsky v. Township of Montclair, 221 N.J. 536,
551 (2015). "The same standard of review applies to our review of a trial
court's decision on appeal from such a determination." Dunbar Homes, Inc. v.
Zoning Bd. of Adjustment of Twp. of Franklin, 448 N.J. Super. 583, 595 (App.
Div. 2017), aff'd 233 N.J. 546 (2018).
Defendants argue that the court misinterpreted Ordinance 109-4, and
should have deferred to the Board's interpretation. "As with other legislative
provisions, the meaning of an ordinance's language is a question of law that we
review de novo." Bubis v. Kassin, 184 N.J. 612, 627 (2005). Although a
zoning board's "informal interpretation of an ordinance is entitled to
deference . . . that deference is not limitless." Mountain Hill, LLC v. Zoning
Bd. of Adjustment of Twp. of Middletown, 403 N.J. Super. 210, 235 (App.
Div. 2008) (quoting Bubis, 184 N.J. at 627). A trial judge's interpretation of a
zoning ordinance is not entitled to deference. Dunbar Homes, 448 N.J. Super.
at 595.
"The established rules of statutory construction govern the interpretation
of a municipal ordinance. . . . Those principles require that an ordinance
should be interpreted to 'effectuate the legislative intent in light of the
language used and the objects sought to be achieved.'" Township of
A-1388-17T1 13 Pennsauken v. Schad, 160 N.J. 156, 170 (1999) (quoting Merin v. Maglaki,
126 N.J. 430, 435 (1992)). The "first step of statutory construction requires an
examination of the language of the ordinance." Ibid. In such an examination,
"[w]e ascribe to the . . . words their ordinary meaning and significance,"
DiProspero v. Penn, 183 N.J. 477, 492 (2005), and "[t]he meaning derived
from that language controls if it is clear and unambiguous," Schad, 160 N.J. at
170. Where the plain language "is susceptible to different interpretations, the
court considers extrinsic factors, such as the statute's purpose, legislative
history, and statutory context to ascertain the legislature's intent." Ibid.
Although zoning ordinances are generally to be "liberally construed in
favor of the municipality," an ordinance must be "clear and unambiguous so
that [persons] of ordinary intellect need not guess at [its] meaning." Id. at 171
(alterations in original) (citation omitted). Moreover, "limitations on the use
of private property must be clearly and expressly imposed, and should not be
inferred." Mountain Hill, 403 N.J. Super. at 236 (quoting Hrycenko v. Bd. of
Adjustment, City of Elizabeth, 27 N.J. Super. 376, 379 (App. Div. 1953)).
A-1388-17T1 14 Defendants first argue the court misinterpreted the definition of
"assembly" because the adjective "permanent" 6 modifies the words "building,
structure, or installation" in Ordinance 109-4. The court interpreted Ordinance
109-4's language to require only a "permanent facility," and held that a
"building, structure, or installation" need not be permanent to be an "assembly"
use.
Ordinance 109-4, which is not a model of clarity, defines "assembly" as
"[a] use which is a permanent facility, building, structure, or installation"
which provides for "assemblage purposes." We, however, agree with
defendants that "permanent," as used in Ordinance 109-4, modifies "facility,
building, structure, [and] installation." The series-qualifier canon, despite its
"fancy name," Lockhart v. United States, 577 U.S. ___, 136 S. Ct. 958, 970
(2016) (Kagan, J., dissenting), provides that "when there is a straightforward,
parallel construction that involves all nouns or verbs in a series, a
6 "Permanent" is not defined in Ordinance 109-4. As "[t]he language of the ordinance 'should be given its ordinary meaning absent specific intent to the contrary,'" Heyert v. Taddese, 431 N.J. Super. 388, 424 (App. Div. 2013) (quoting Mortimer v. Bd. of Review, 99 N.J. 393, 398 (1985)), we hereinafter use the term "permanent" in accordance with its ordinary meaning as "continuing or enduring without fundamental or marked change," Merriam- Webster.com Dictionary, https://www.merriam- webster.com/dictionary/permanent (last visited June 19, 2019).
A-1388-17T1 15 prepositive . . . modifier normally applies to the entire series," Black's Law
Dictionary 1574 (10th ed. 2014). The canon will normally apply where "the
nouns and verbs are listed without any intervening modifiers." United States
ex rel. Vaughn v. United Biologics, LLC, 907 F.3d 187, 195 (5th Cir. 2018);
cf. United States v. Loyd, 886 F.3d 686, 688 (8th Cir. 2018) (declining to
interpret a statute using the series-qualifier canon where "the statute does not
present . . . a single, uninterrupted series"). We apply the canon here.
Ordinance 109-4's definition of "assembly" provides an uninterrupted series of
nouns that are modified by the prepositive adjective "permanent," and are
uninterrupted by an intervening modifier. Therefore, we hold that "assembly,"
as defined by Ordinance 109-4, requires that any qualifying facility, building,
structure or installation be permanent.
Defendants next contend the court misinterpreted Ordinance 109-4
because it requires the use to be "contained within a permanent building," such
that the building would "shield adjacent residential uses from the adverse
impacts." Although such would certainly have been reasonable, defendants'
interpretation of Ordinance 109-4 fails to find support in the ordinance's plain
language. The ordinance states that a "permanent facility, building, structure,
or installation" must "provid[e] for . . . assemblage purposes." It does not
A-1388-17T1 16 require that the "facility, building, structure, or installation" "contain" or
"house" the use, and "[w]e cannot 'write in an additional qualification which
the Legislature pointedly omitted in drafting its own enactment.'" Mountain
Hill, 403 N.J. Super. at 239 (alteration in original) (quoting DiProspero, 183
N.J. at 492).
Moreover, defendants' interpretation improperly imposes properties that
typically characterize "building[s]" to the separately listed "facilit[ies],"
"structure[s]," and "installation[s]," some of which are clearly not buildings.
"It is a cardinal rule of statutory construction that full effect should be given, if
possible, to every word of a statute." McCann v. Clerk of Jersey City, 167 N.J.
311, 321 (2001) (quoting Gabin v. Skyline Cabana Club, 54 N.J. 550, 555
(1969)). "Building," as defined by Ordinance 109-4, is "[a] combination of
materials to form a construction adapted to a permanent, temporary or
continuous occupancy and have a roof." "Structure" is also defined by
Ordinance 109-4 as:
Anything constructed or erected which requires permanent or temporary attachment to something which is erected on the ground and designed, intended or arranged for the housing, shelter, enclosure and/or structural support of persons, animals or property of any kind, excluding unroofed patios at ground level, parking lots or driveways, and fences in compliance with this chapter.
A-1388-17T1 17 "Facility" and "installation" are not defined by Ordinance 109-4, and
because "[t]he language of the ordinance 'should be given its ordinary meaning
absent specific intent to the contrary,'" Heyert, 431 N.J. Super. at 424 (quoting
Mortimer, 99 N.J. at 398), we therefore turn to the ordinary meanings of those
terms. "Facility" is defined as "something . . . that is built, installed, or
established to serve a particular purpose." Merriam-Webster.com Dictionary,
https://www.merriam-webster.com/dictionary/facility (last visited June 18,
2019). "Installation" is defined as "something installed for use," Merriam-
Webster.com Dictionary, https://www.merriam-
webster.com/dictionary/installation (last visited June 18, 2019), and is
synonymous with the term "center," defined as "a facility providing a place for
a particular activity or service," Merriam-Webster.com Dictionary,
https://www.merriam-webster.com/dictionary/center (last visited June 19,
2019).
Each of these terms have elements separate and distinct from one
another; for example, a "building" requires a roof, an element not required to
be present in a "facility," "structure," or "installation." Therefore, to give
effect to each of the terms used in the ordinance, we find that facilities,
structures, and installations are different from buildings and they neither
A-1388-17T1 18 require roofs nor must they be "adapted to a permanent, temporary, or
continuous occupancy." See McCann, 167 N.J. at 321 ("We cannot assume
that the Legislature used meaningless language." (quoting Gabin, 54 N.J. at
555)). We therefore decline to adopt defendants' interpretation of Ordinance
109-4 that would require the assembly use to be "contained within a permanent
building."
The parties do not argue that any building or installation on the property
provides for the assembly use. The primary location for receptions on the
property is the tennis court, which the court determined was a permanent
facility within the meaning of Ordinance 109-4. We agree. Plaintiffs'
evidence showed that when receptions are held at the property, a tent is erected
over the tennis court, and the tennis court is then used as "a pad site" for
reception attendees to gather, eat and dance. Plaintiffs have, through their
proposed use of the property, "established" the tennis court "to serve a
particular purpose": providing the property's banquet space. Facility,
Merriam-Webster.com Dictionary, https://www.merriam-
webster.com/dictionary/facility (last visited June 18, 2019). We further agree
with the court that the tent which is temporarily erected over the tennis court
does not detract from the tennis court's permanency as a facility: the tennis
A-1388-17T1 19 court is the place where receptions are held and, as the evidence showed and as
defendants' counsel candidly acknowledged at oral argument on this appeal,
the tennis court is a permanent aspect of the property. The court's finding that
the tennis court constitutes a permanent facility under Ordinance 109-4 is
supported by the evidence.
Having determined the tennis court is a permanent facility within the
meaning of Ordinance 109-4, we must also determine whether the court erred
by finding the property also satisfied Ordinance 109-104(A)'s buildable
acreage requirement. Defendants argue the court misinterpreted Ordinance
109-104(A), and contend Ordinance 109-104(A) requires that the property
have four contiguous buildable acres.
We again consider the plain language of the ordinance. Schad, 160 N.J.
at 170. Ordinance 109-104(A) requires that "[t]he minimum lot size" for a
conditional assembly use "shall be five acres, at least four of which shall be
buildable." The word "buildable" is not defined in the Township's ordinances .
Ordinance 109-4, however, defines a "buildable area" as "the contiguous area
of any lot exclusive of critical environmental areas." Defendants argue that
Ordinance 109-104(A)'s use of the term "buildable" should be interpreted to
incorporate the definition of "buildable area" in Ordinance 109-104(A) and, as
A-1388-17T1 20 such, there is a requirement that plaintiffs' property have four contiguous
buildable acres for an assembly use. Plaintiffs argue the exclusion of the
entire phrase "buildable area" from Ordinance 109-104(A) means that there is
no requirement that the four "buildable" acres be contiguous.
We find Ordinance 109-104(A) imposes no contiguity requirement.
Ordinance 109-104(A) does not use the phrase "buildable area," or the term
"contiguous." Defendants, in essence, request that we re-write Ordinance 109-
104(A) to read "[t]he minimum lot size shall be five acres, at least four of
which shall constitute a buildable area." (Emphasis added). Although the
"general rule" of statutory interpretation is that "a word or phrase should have
the same meaning throughout the statute in the absence of a clear indication to
the contrary," Perez v. Pantasote, Inc., 95 N.J. 105, 116 (1984), where the
drafter "has 'pointedly omitted' a term from an enactment, we cannot presume
to write that term" into the ordinance, Verry v. Franklin Fire Dist. No. 1, 230
N.J. 285, 298 (2017) (quoting DiProspero, 183 N.J. at 492). Ordinance 109-
104(A) merely requires that four acres be "buildable," and does not otherwise
require those four acres to be a contiguous, four-acre "buildable area." We
decline to "write in an additional qualification" that was omitted, Mountain
A-1388-17T1 21 Hill, 403 N.J. Super. at 239 (quoting DiProspero, 183 N.J. at 492), and hold
Ordinance 109-104(A) does not require four contiguous buildable acres.
Based on our interpretation of Ordinance 109-104(A), we affirm the
court's order and hold the Board abused its discretion by denying plaintiffs'
application for a conditional use approval. See Adams, 309 N.J. Super. at 575.
The evidence before the Board showed that the property consisted of 5.6
"buildable" acres, satisfying Ordinance 109-104(A). It further showed that the
property satisfied the maximum lot coverage requirement of Ordinance 109-
104(C) and, as discussed above, the property's compliance with Ordinance
109-104(B)'s setback requirement was not an issue due to plaintiffs' agreement
to remove the offending features. We need not address defendants' arguments
regarding whether the property qualified for a conditional use variance because
a conditional use variance is unnecessary.
Because we affirm the court's reversal of the Board's decision, we
remand the matter to the Board for consideration of plaintiffs' site plan. See
N.J.S.A. 40:55D-76(b). We do not agree with plaintiffs' representations that a
site plan need not be submitted for the property. Township of West Amwell,
N.J., Land Development Ordinance 109-214 (Dec. 28, 1990) requires
A-1388-17T1 22 submission of a site plan in all matters except those situations specifically
outlined in subsection (E), none of which apply here.
We affirm the court's October 20, 2017 order reversing the Board's
denial of plaintiffs' conditional use application. We remand to the Board for
consideration of plaintiffs' site plan, see N.J.S.A. 40:55D-76(b), and plaintiffs
shall comply with the applicable requirements to obtain approval of a site plan
before the Board.
Affirmed and remanded for consideration of plaintiff's site plan
application. We do not retain jurisdiction.
A-1388-17T1 23