DE SAPIO PROPERTIES SIX, INC. VS. ALEXANDRIA TOWNSHIP BOARD OF ADJUSTMENT (L-0016-16, HUNTERDON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 28, 2018
• Docket: A-5585-15T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5585-15T2

DE SAPIO PROPERTIES #SIX, INC. and DELAWARE RIVER TUBING, INC.,

Plaintiffs-Respondents,

v.

ALEXANDRIA TOWNSHIP BOARD OF ADJUSTMENT,

Defendant-Appellant. _______________________________________

Argued October 2, 2017 – Decided August 28, 2018

Before Judges Messano and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-0016-16.

Joseph C. Tauriello argued the cause for appellant (Mason, Griffin & Pierson, PC, attorneys; Joseph C. Tauriello, on the brief).

Gaetano M. DeSapio argued the cause for respondent.

PER CURIAM In this land use matter, defendant Alexandria Township

Board of Adjustment (board) appeals from a Law Division judgment

that reverses two of its resolutions and finds plaintiffs'

proposed use of certain property to be a permitted use. After

reviewing the record and applicable legal principles, we affirm.

I

Plaintiff DeSapio Properties #Six, Inc., (property owner)

owns a lot in Alexandria Township (township) on which is a

commercial building and a large parking lot. In August 2015,

the property owner leased a shop in its building to plaintiff

Delaware River Tubing, Inc. (DRT), out of which DRT sells

various goods and small watercraft, such as tubes, rafts,

kayaks, and canoes. In addition, DRT rents out such watercraft

for use on the Delaware River. If a customer rents a craft, DRT

transports the customer and the craft from DRT’s parking lot to

a specific location on the river where the craft is launched.

After the river trip concludes down the river, the customer and

the craft are picked up and transported back to the store.

Around the time DRT opened its shop, plaintiffs sought a

permit from the township to enable DRT to use the premises as a

retail establishment. Plaintiffs' application described DRT's

business as "a retail establishment that sells retail goods such

as T-shirts, hats, water cameras, water shoes and other related 2 A-5585-15T2 river good[s]. We also rent tubes, rafts, kayaks and canoes,

and provide a free shuttle service to and from the river, only

to those who rent equipment. No other shuttle or bus service is

provided under any other circumstances."

The zoning officer denied the application on the ground the

proposed use was "commercial recreation," which he concluded was

not a permitted use in the zone. In support of his decision,

the zoning officer cited township ordinance 115-13A(2). We note

the latter ordinance makes no reference to "commercial

recreation."

The property owner appealed the zoning officer's

determination to the board and sought a "zoning interpretation."

The property owner contended the kind of business DRT wanted to

conduct was a permitted use in the zone. Among other things,

the property owner claimed the proposed use was a retail shop

and, thus, a permitted use pursuant to ordinance 115-22E(1). In

the alternative, the property owner asserted the use was a

service business, a permitted use pursuant to ordinance 115-

22E(3). The board conducted a hearing; the relevant evidence

was as follows.

DRT's president, Gregory Crance, testified DRT has been in

business since 2003 and, in 2015, he decided to move DRT to the

township. His description of DRT was essentially consistent 3 A-5585-15T2 with what plaintiffs provided in their application to the zoning

officer, although Crance clarified the cost of shuttling

customers to and from the river is included in the price of

renting any watercraft. He estimated seventy-five percent of

DRT's income is derived from renting watercraft and twenty-five

percent is from the sale of goods.

Crance noted transporting customers who rent watercraft to

and from the river is a service typically provided by

outfitters. He claimed that if DRT did not provide such

service, DRT would go out of business because customers who rent

watercraft usually need a means to transport them to the river.

In fact, approximately ninety-five percent of those who rent

watercraft from DRT take advantage of its shuttle service.

Crance testified DRT obtained an "exclusive concession

agreement" from the New Jersey Department of Environmental

Protection (DEP). This agreement granted DRT permission to use

two locations on the river to drop off and pick up customers and

watercraft. Crance explained an agreement of this kind with the

DEP is required for any outfitter to gain access to the river

for its customers to launch and remove watercraft. A business

may not use an access point along the river that has been

granted to another business by the DEP through a concession

agreement. 4 A-5585-15T2 Crance pointed out DRT's buses travel only a "quarter . . .

maybe a half a mile" through the township when DRT transports

customers either to or from the river. Immediately adjacent to

the property where DRT is located is a lumber business, where

construction vehicles and tractor-trailers enter and exit DRT's

adjoining parking lot throughout the day. Also adjacent to

DRT's parking lot is a fuel oil company where tractor-trailers

pull into the company's driveway, but Crance did not indicate

how frequently they did so.

The relevant testimony of plaintiffs' expert planner,

Elizabeth C. McKenzie, was as follows. The lot on which DRT is

located is large, measuring almost thirteen acres, and is in the

Industrial Commercial District. This District permits a range

of retail uses, including retail shops and service businesses.

One ordinance expressly states the intent of the Industrial

Commercial District is to provide sites for "light and heavy

industrial uses and more intensive retail commercial

activities."

In McKenzie's view, DRT is a retail shop because it sells

goods and rents equipment to be used on the river. According to

her, ordinance 115-22E(1) permits retail shops in this District.

This ordinance states in pertinent part:

5 A-5585-15T2 E. Retail and consumer services uses.

(1) E-1 Retail Shop. A retail shop shall include a store selling apparel, . . . [and] sporting goods, . . . provided that [certain conditions are met.]1

McKenzie opined the fact DRT transports certain customers

to and from the river is irrelevant to the issue of whether DRT

is a permitted use; that is, the busing of customers does not

change the nature of DRT's use of the site or disqualify it from

being a retail shop. She observed it is not unusual for

sporting goods stores to facilitate participation in those

activities that will lead to the sale of their goods or the

rental of their equipment. Many stores endeavor to enhance

business by providing transportation to locations where certain

recreational activities take place, likening DRT to ski shops

that arrange for transportation to ski areas.

David Banisch, the board's planner, also testified. In his

opinion, the proposed use is "a concession with an Omnibus

license or registration for transportation." He reasoned that,

because seventy-five percent of DRT's business is renting out

equipment for use on the river, then seventy-five percent of the

business is a "concession with a license to use a bus."

1 The conditions to which the ordinance refers are not in issue and for the sake of brevity are not set forth here.

6 A-5585-15T2 Further, in his view, if a use is not specifically

identified in an ordinance as a permitted use, then the use is

prohibited. Because DRT is engaging in a use that is not

identified as a permitted use in any ordinance then, according

to him, such use is prohibited. Finding DRT's use of the

property was not permitted, Banisch determined the zoning

officer did not err when he denied plaintiffs a zoning permit.

The board issued two resolutions. One resolution responded

to the property owner's request for an interpretation of the

applicable zoning ordinances. In that resolution, the board

found

the retail component of the operation was a small part of the operation in that the majority of the operation consisted of patron parking on site, rental of equipment, transportation of patrons to and from the river and the operation of the concession license granted by the State of New Jersey. As such the Board finds that the use of the property did not meet the definition in subsection E1 of the Ordinance[,] which allows a "retail shop."

In its other resolution, the Board found the zoning

officer's denial of the permit proper because the proposed use

is not permitted by any ordinance and, thus, such use is

prohibited.

Plaintiffs filed a complaint in lieu of prerogative writs

challenging the board's resolutions. The trial court reversed 7 A-5585-15T2 the board, concluding the resolutions were unsupported by law.

Essentially, the trial court determined the term "retail" as

used in ordinance 115-22E(1) included both the renting and

selling of goods. The sole authority upon which the trial court

based its decision was a provision in the Sales and Use Tax Act

(Act), N.J.S.A. 54:32B-1 to -29. Specifically, the trial court

determined that because the term "retail sale" as defined by the

Act includes any "sale, lease, or rental," see N.J.S.A. 54:32B-

2(e), then the term "retail" as used in the subject ordinance

must also mean the lease or rental of goods.

While the matter was pending before the trial court, the

board granted the property owner a use variance, see N.J.S.A.

40:55D-70(d)(1). This variance permits DRT to use a portion of

the site for parking and to transport its customers and

watercraft to and from the river. The use variance is subject

to various conditions, none of which needs to be addressed here.

Notwithstanding the fact it granted a use variance, the

board maintains the trial court's determination is erroneous and

must be reversed. Accordingly, the board appeals from the trial

court's judgment.

II

On appeal, the board contends the trial court erred because

it: (1) reviewed the matter de novo, and (2) disregarded 8 A-5585-15T2 evidence DRT's predominant use of the site was not to sell goods

but to rent equipment, provide customers long-term parking while

they engaged in off-site activities, transport customers to and

from the river, and operate a concession license. The board

also requests we find the use variance it granted to plaintiffs

was appropriate, and that a site plan is necessary, even if the

use is permitted.

We decline to address whether the use variance is

appropriate and if a site plan is necessary, because those

issues are not before us. The board's notice of appeal reveals

it appeals from only the trial court's judgment. An appeal is

limited to those judgments or orders designated in the notice of

appeal. See Pressler & Verniero, Current N.J. Court Rules, cmt.

6.1 on R. 2:5-1 (2018); see also Campagna ex rel. Greco v. Am.

Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div. 2001)

(refusing to consider a challenge to an order not listed in the

notice of appeal).

We turn to the standard of review. When reviewing the

decision of a trial court that has reviewed a decision of a

board of adjustment, we are bound by the same standards as was

the trial court. Fred McDowell, Inc. v. Bd. of Adjustment of

Township of Wall, 334 N.J. Super. 201, 212 (App. Div. 2000).

Thus, we determine whether the "board decision is supported by 9 A-5585-15T2 the record and is not so arbitrary, capricious, or unreasonable

as to amount to an abuse of discretion." New Brunswick Cellular

Tel. Co. v. S. Plainfield Bd. of Adjustment, 160 N.J. 1, 14

(1999) (citation omitted).

However, we review de novo a board's conclusions of law.

Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993). Consequently, we

exercise plenary review of a board's interpretation of its

ordinances. Ibid.; see also Adams v. Delmonte, 309 N.J. Super.

572, 583 (App. Div. 1998) (considering de novo whether a

particular service business "qualifie[d] as a home occupation

under the ordinance").

Here, there is no question the trial court applied the

appropriate standard of review. No further discussion on this

point is warranted. See R. 2:11-3(e)(1)(E). The next question

is whether the trial court erred when it found DRT is a retail

shop and, thus, DRT's use of the site is permitted under

ordinance 115-22E(1).

As previously noted, ordinance 115-22E(1) states in

pertinent part:

E. Retail and consumer services uses.

(1) E-1 Retail Shop. A retail shop shall include a store selling apparel, . . . [and] sporting goods . . . .

10 A-5585-15T2 The board does not dispute DRT sells apparel and sporting

goods, but it does maintain DRT's principal use2 of the site does

not include selling goods and, therefore, DRT is not a retail

shop pursuant to ordinance 115-22E(1). Rather, the board

contends DRT's principal use of the property is to rent

equipment, permit customers to use its parking lot while they

use DRT's equipment, transport customers and crafts to the river

and back, and make use of its concessions. Therefore, it is the

board’s position the principal use of the property is not a

permitted one under ordinance 115-22E(1).

As stated, the trial court determined DRT is a retail shop,

making it a permitted use pursuant to this ordinance. However,

the trial court's conclusion DRT is a retail shop was based

solely upon the definition of "retail sale" in the Sales and Use

Tax Act, see N.J.S.A. 54:32B-2(e). That definition is

unavailing, because it is to be used only to define "retail

sale" as that term is used in the Act. Therefore, based upon

the trial court’s rationale, DRT cannot be deemed a retail shop

under the subject ordinance.

2 Ordinance 115-4 defines "use" as the "specific purpose for which land or a building . . . thereon is designed, arranged or intended, or for which it may be occupied or maintained." It defines a principal use as "[a] main use; a use which is not incidental or subordinate to another use on the same lot."

11 A-5585-15T2 However, as advocated by the property owner when before the

board, ordinance 115-22E(3), which pertains to businesses which

provide services, DRT's particular use of the subject site is

permitted. That ordinance states in pertinent part:

E-3 Service Business. A service business shall include such uses as a barber, beautician, laundry and dry cleaning (whether or not coin operated), shoe repair, tailor, photographer, newspaper, printer and travel agency, provided that [certain conditions are met.]3

Before proceeding further, we note the board interprets the

term "shall include" in an ordinance as one of limitation.

Thus, we expect the board would interpret ordinance 115-22E(3)

to mean that only those kinds of businesses specifically listed

in the ordinance are services business.

It has long been settled the term "shall include" as used

in this context is not intended to be exclusive or to have a

restrictive meaning. See Levitt & Sons, Inc. v. Division

Against Discrimination, 31 N.J. 514, 526 (1960) (holding the

words "shall include" means the examples listed in a statute are

merely "illustrations of the meaning of the phrase being

considered, rather than an exhaustive enumeration."); Snegon v.

Consol. Indem. & Ins. Co., 117 N.J. Eq. 325, 330 (Ch. 1934)

3 The conditions to which the ordinance refers are not in issue and are not set forth here. 12 A-5585-15T2 (holding the use of the words "shall include" is not to limit

but amplify the classification to which it applies). Therefore,

ordinance 115-22E(3) does not confine the definition of service

businesses to only those listed in it.

The term "service business" is not defined in the ordinance

that provides the definition of various terms used in the

township’s zoning ordinances, see ordinance 115-4, and there is

no evidence what the township intended by this term when it

drafted and adopted ordinance 115-22E(3). We therefore resort

to the dictionary to ascertain the meaning of this term. See

Macysyn v. Hensler, 329 N.J. Super. 476, 485 (App. Div. 2000).

Research discloses only one dictionary defines "service

business." That definition informs that a service business is

"[a] commercial enterprise that provides work performed in an

expert manner by an individual or team for the benefit of its

customers. The typical service business provides intangible

products, such as accounting, banking, consulting, cleaning,

landscaping, education, insurance, treatment, and transportation

services." Service Business, http://www.businessdictionary.com/

definition/service-business.html (last visited August 21)

(emphasis supplied).

The word "business" is clear; resort to reference resources

to understand such term is unnecessary. The word "service" is 13 A-5585-15T2 less clear. The Cambridge English Dictionary defines "service"

as "a business that provides something for people but does not

produce goods[.]" Service, Cambridge English Dictionary,

https://dictionary.cambridge.org/us/dictionary/english/service

(last visited August 21, 2018). The Collins-English Dictionary

defines "services" as "activities such as tourism, banking, and

selling things which are part of a country's economy, but are

not concerned with producing or manufacturing goods." Services,

Collins Dictionary,

https://www.collinsdictionary.com/us/dictionary/english/service

(last visited August 21, 2018).

Here, as the board found, the retail component of DRT’s

operation is only a small part of its operation, as DRT is

predominantly in business to provide services. Those services

include renting out watercraft and transporting customers to and

from the Delaware River, and, while customers avail themselves

of these services, customers are permitted to park their

vehicles in DRT’s parking lot. Because DRT’s principal use is

to provide services, such use is a permitted one pursuant to

ordinance 115-22E(3).

Although we disagree with the trial court’s conclusion that

DRT’s use of the premises is a permitted one on the ground

expressed by that court, we are satisfied DRT’s use of the 14 A-5585-15T2 premises is permitted pursuant to ordinance 115-22E(3), and

affirm the judgment under review. "[A]n order or judgment will

be affirmed on appeal if it is correct, even though the judge

gave the wrong reasons for it." Ellison v. Evergreen Cemetery,

266 N.J. Super. 74, 78 (App. Div. 1993) (citing Isko v. Planning

Bd., 51 N.J. 162, 175 (1968)).

Affirmed.

15 A-5585-15T2