SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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PETER AULERT , MARILYNNE AULERT and PMA MOTORS , INC. , t/a ROBINSON ' S GARAGE , Plaintiffs

- Appellants ,

v. MAYOR and TOWNSHIP COMMITTEE OF BRICK , NJ , Defendants

- Respondents.

___________________________ ___

Argued October 15 , 2019

– Decided Before Judges Sumners and Natali. On appeal from the Superior Court of New Jersey , Law Division , Ocean County , Docket No. L

- 1590

- 18. Maurice J. Maloney argued the ca use for appellants (Maurice J. Maloney , attorney; Jeff Edward Thakker , of counsel; Maurice J. Maloney , on the briefs). Kevin B. Riordan argued the cause for respondent s (Kevin B. Riordan LLC , attorney s ; Kevin B. Riordan , Gary P. Mc Lean , and Dina R. Khajez adeh , on the brief). NOT FOR PUBLICATION WITHOUT THE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.

December 4, 20192 A

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PER CURIAM Plaintiffs Peter and Marilynne Aulert , and PMA Motors , Inc. , t/a
Robinson ' s Garage , appeal from two August 17 , 2018 Law Division orders that
denied their request for injunctive relief and dismiss ed their complaint in lieu of prerogative writs with prejudice pursuant to Rule 4:6

- 2(e)

. After considering the record against the relevant legal principles and appli cable standard of
review , we vacate the August 17 , 2018 ord ers and remand for further proceedings.
I. The facts underlying this appeal relate to the denial by defendant s Mayor
and Township Committee of Brick ( collectively Township) of plaintiffs ' 2018 application for a license to sell motor vehicles. Before its 2018 denial , the Township had granted plaintiffs ' license applications for twenty

- eight consecutive years

. T he Township adopted ordinances , codified in Chapter 466 of the Township ' s Municipal Code , to regulate motor vehicle sales and storage3 A

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pursuant to N.J.S.A. 40:52

- 1 and

- 2. 1 T he ordinances pro scribe " any person , persons , firm , partnership[ , ] or corporation [from] engag[ing] in the busine ss of selling or exchanging motor vehicles with out . . . obtain[ing] a license . . . . " An application for such a license must contain information relat ed to the identity of the applicant and " [t]he location of the proposed licensed premises ," and must
be submitted annually to the Township Clerk along with a licensing fee. The ordinances also limit the number of licenses issued by the Township
to fifteen " Category [One] licenses " and two " Category [Three] licenses. " 2 After a license is granted , the Township Council (Council) may revoke it " at any time

1 The New Jersey State Legislature expressly permits municipalities to regulate "[a]utomobile garages [and] dealers in second

- hand motor vehicles." N.J.S.A. 40:52

- 1(e).

2 A Category One license permits "[t]he offering of more than one motor vehicle at any one time for sale or exchange by exhibiting, storing, parking, locating[,] or keeping such motor vehicles on any premises." A Category Two license allows "[t]he offerin g of more than one motor vehicle at any one time for sale or exchange where any such motor vehicles are not exhibited, stored, parked, located[,] or kept upon those premises from which such motor vehicles are offered for sale or exchange." There does not appear to be a limit on the number of Category Two licenses issued by the Township. Finally, a Category Three license enables the holder to offer "more than one motorcycle, all[

- ]terrain vehicle[,] or personal watercraft at any one time for sale or exchan ge by exhibiting, storing, parking, locating, or keeping such motor vehicles on any premises." While unspecified in the parties' briefs on appeal, we glean from the record that the licenses granted to plaintiffs were Category One licenses.4 A

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for any violation of this chapter or for other legal cause , after notice to the licensee and a hearing. " When making its determination under Chapter 466 , the Council is charged
with " examin [ ing ] the qualifications of . . . applicant[s] . . . to determine if [the] applicant . . . would conduct the licensed activity in a lawful manner . . . . " T he Council considers the following factors:

(1) The Zoning Ordinance of the Tow nship[;] (2) The Uniform Construction Code of the Township[;] (3) Any and all general laws and public health statutes and codes of the State of New Jersey applicable to municipalities[;] (4) The report of the Board of Fire Commissioners[;] (5) Reports of a ll Township officers , where requested by the [Council][;] (6) The existence of any convictions of any crimes , the reasons therefor and the demeanor of the applicant subsequent thereto , only where required pursuant to state statutes[; and] (7) The license h istory of the applicant; whether such person , in previously obtaining a license in this Township or any other municipality , has had such license rejected or suspended , the reasons therefor and the demeanor of the applicant subsequent to such actions; the t imeliness of past applications for licenses; and the applicant ' s continued compliance with all license requirements after having been granted any previous licenses.
Further , as noted, because Township motor vehicle sales licenses " expire on [December 31] of [the] year in which said license was issued ," the municipal5 A

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ordinance requires that licenses be renewed each year by filing another application and paying a new license fee. The Council considers the same
factors noted above when issuing license renewa ls.
In December 1987 , plaintiffs purchased property in the Township , which had been used by the previous owner for repairing and selling used cars . When plaintiffs purchased the property , they applied for and were granted a license to sell automobiles in the Township. After the purchase , according to the verified complaint , plaintiffs " continued to use the property for the same purposes " as the previous owners

. Seven years later , a lengthy se ries of disput es between the parties began. Specifically , i n 1994 , the Township issued plaintiffs a municipal summons for storing " too many unregistered cars " on the property. The summons was later dismissed by the Township Municipal Court.
The followi ng year , the Township complained regarding excessive
veg etation on the property. A ccording to plaint iffs , the dispute was " amicably
resolved " by p laintiffs " replac [ing] vegetation , install [ing] fencing and a pole . . . and agree [ ing ] t o obtain a permit from the Ocean County Soil Conservation
District. " As a result , the Township renew ed plaintiffs ' license for the 1995 calendar year

.6 A

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After a fifteen

- year period in which plaintiffs ' license was repeatedly
renewed without issue , in December 2010 , the Township issued a violation notice to plaintiffs for storing " too many unregistered vehicles

. " T he Township
also notified plaintiffs that it would not recommend renewal of plain tiffs ' 2011
license because inspection reports were " not favorable. " Sub sequently , in
March 2011 , the Township issued plaintiffs a municipal court summons again
for keeping " too many unregistered vehicles " on the property , which correspond ed with the December 2010 violation notice . After plaintiffs
removed ten of sixty

- eight vehicles , the municipal court summons was dism issed and the Township renew ed plaintiffs ' 2011 license

. A number of months later , in October 2011 , the Township issued plaintiffs another municipal court summons alleging that plaintiffs were unla wfully

" operat ing a junkyard without a permit ," in violation of Section 237

- 3 of the Township ' s Municipal Code. The issue was settled when plaintiffs agreed to

" install[] fencing , obtain[] a new survey , relocat[e] certain cars on the property[ , ] and [re

- p aint] driveway striping and lettering. " Shortly thereafter , the Council renewed plaintiffs ' 2012 license.
Then , in December 2015 , an official from the Township Code
Enforcement Office inspected the property and advised plaintiffs " that every7 A

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vehicle ha d to be removed

. . . . " Shortly thereafter , Code Enforcement sent plaintiffs a letter stating that it believed plaintiffs were " running a junk yard ,"
and that plaintiffs must discuss the issue with the Township " before [the] application for renewal of [plaintiffs ' ] dealership license for 2016 would be presented to the Township . . . for consideration. " Plaintiffs took no formal action against the Township at that time

. However , Peter Aulert certified in support of plaintiffs ' opposition to the Township ' s cross
- motion that over the ensuing months following the December
2015 letter , he " left numerous messages " and " made ongoing attempts to
schedu le a meeting " with the Township. Aulert stated that " no one from [the Township] showed up for the appointment[s] or called to reschedule. " In March
2016 , plaintiffs sent a notice of tort claim , pursuant to N.J.S.A. §§ 59:8

- 3 to

- 8 , to the Township , " citing [his] damages as a result of the refusal to act by the [Township] on [his] 2 016 license renewal application . . . . " T he Township never formally responded to plaintiffs ' notice.
In June 2016 , a Township official visited the property and informed plaintiffs of a 1969 building resolution and 1985 subdivision documents which
established that plaintiffs ' use of the property was noncompliant with the Township ' s municipal ordinances

. T hree days later , a representative of the8 A

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Township Code Enforcement Office contact ed plaintiffs and stated he " had the minutes from the 1969 Board of Adjustment he arings to build [a] garage and the Resolution from the 1985 Planning Board meeting for the subdivision " of the property , and that plaintiffs were in violation of conditions contained in the
minutes , including a provision in the 1969 resolution which stated that " [t]he sale of motor vehicles shall not be permitted " on the property . P laintiffs requested " details and copies of the docu ments ," and while the Township provided plaintiffs with the documents shortly thereafter , the Township did not provide a list of " demands to correct the situation " that p laintiffs also requested.
In December 2016 , plaintiffs met with various Township officials who
informed them that they " had to meet [the Township ' s] conditions before [the] applic ation w ou ld be considered ," but according to plaintiffs , the Township still
failed to provide a written list of concerns at the property that needed t o be
rectified

. A t another meeting shortly thereafter , the Township ' s Business Administrator informed plaintiffs t hat the Township " would give [them] ' back ' [their] dealership license if [they] agreed to park only [six] cars in front of the building ," but then " added more conditions which would have caused [them] to lose 3900 square feet of parking area . . . . "9 A

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Th roug hout 2017 , plaintiffs " tried to negotiate some type of agreement which would satisfy the [Township] and allow [plaintiffs] to secure the renewal of [the] dealership license ," but plaintiffs were " unable to secure a concise
written list " of the Township ' s conditions. In December 2017 , the Township again sent a letter to plaintiffs enclosing the 1969 Township resolutio n which
stated that " [t]he sale of motor vehicles shall not be permitted " on plaintiffs ' property.
I n March 2018 , a Town ship official met with plaintiffs and informed them
that : 1) because the license was " renewed annually ," the Township " had the right to deny the license renewal ," and 2) plaintiffs had to remove all motor
vehicles from the property. The next month , plain tiffs formally submitted a
license application for the 2018 calendar year , which , according to a Township resolution adopted on May 8 , 2018 , was denied " upon review of the factors set
forth in Section 466

- 5 . . . . " The resolution further stated that the Township
based its denial " on the repeated and continuous failures of the owners to address the problems with the existing site conditions and numerous violations on the
site. "10 A

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Approximately one month later , p laintiffs filed a n order to show cause and

a v erified complaint in lieu of prerogative writs , pursuant to Rule 4:69

- 1 , 3 in the
Law Division 4 seeking injunctive relief , the " issuance of the renewal licenses
. . . without restrictions [ , ] " and " authority to continue to legally . . . [sell] motor
vehi cles in [the] Township " as well as damages , attorneys ' fees , and costs. In their verified complaint , plaintiffs alleged that the Township : 1) violated plaintiffs ' right to due process by failing to provide them with " advance notice that [plaintiffs ' ] application would be considered " on the date the Council denied the 2018 application ; 2) committed inverse condemnation by depriving

" [p]laintiffs of all or substantia lly all of the beneficial use " of the property ; 3) harassed plaintiffs by " consistently demand[ing] more than what was demanded
in the last settlement " before considering plaintiffs ' license application; 4) arbitrarily and capriciously denied plaintiffs ' 2 018 license application; 5) selectively enforced Section 466

- 5 by granting licenses to " other business

3 A n action in lieu of prerogative writs permits a party " to seek 'review , hearing and relief' in the Superior Court of all actions of municipal agencies." Rivkin v. Dover Twp. Rent Leveling Bd. , 143 N.J. 352 , 378 (1996) (quoting N.J. Const. art. VI , § 5 , ¶ 4); see als o R

. 4:69

- 1

.
4 The initial verified complaint was incorrectly labeled as filed in the Chancery Division , but was amended on June 28, 2018 to accurately reflect its filing in the Law Divisi on.11 A

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locations . . . in the Township . . . which [had] more vehicles on [the properties] , . . . had certain vehicles on the properties for extended periods of time [ , ] and/or [were] more crowded with cars " than plaintiffs ' property; and 6) exceeded municipal authority by failing to follow " standards or procedures . . . prior to denying renewal of a license to sell motor vehicles. " On July 11 , 2018 , the trial j udge signed an order to show cause as a summary proceeding , pursuant to Rule 4:67

- 1(a)

. 5 Before the hearing on the

5 A n order to show cause "may properly be utilized where a party seeks some form of . . . interim relief such as the preservation of the status quo pending final hearing of the cause , " pursuant to Rules 4:52

- 1 and

- 2 , or "as initial process in those actions in which the court is permitted by statu te or rule to proceed in a summary manner , " pursuant to Rule 4:67

- 1(a). Solondz v. Kornmehl , 317 N.J. Super. 16 , 20 (App. Div. 1998). It does not appear from the record before us that plaintiffs requested to proceed summarily, nor that the court did so

. Moreover , as it noted in the order to show cause , the court determined that the case would be "commenced . . . as a summary proceeding pursuant to [ Rule ] 4:83

- 1 . . . ." That Rule , however, addresses summary proceedings in probate actions and , therefore , has no application here . Further , it appears that counsel submitted , and the court signed , an order to show cause incons istent with the recommended forms from the Administrative Office of the Courts, see Order to Show Cause Summary Action (rev. Sept. 1 , 2019) , https://njcourts.gov/forms/10704_osc_sum_action.pdf; Order to Show Cause Preliminary Injunction Pursuant to Rule 4:52 (rev. Sept. 1 , 2019) , https://www.njcourts.gov/forms/10705_osc_prelim_injunct.pdf ; Order to Show Cause with Temporary Restraints Pursuant to Rule 4:52 (rev. Sept. 1 , 2019) , https://njcourts.gov/forms/10308_osc_temp_restrain.pdf. W e nevertheless interpret the order to show cause and verified complaint to seek, in part, interim relief as authorized by Rule 4:52.12 A

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order to show cause , the Township filed a certification in opposition to plaintiffs ' application for preliminary restraints and also filed a cross
- motion to dismiss. Prior to the exchange of any discovery , t he court heard oral arguments on August 17 , 2018 to address plaintiffs ' request for injunctive relief and the Township ' s cross
- motion to dismiss. P laintiffs argued that , under Crowe v. De
Gioia , 90 N.J. 126 (1982) , they would suffer irreparable harm because the Township ' s nonrenewal of plaintiffs ' municipal motor vehicle sale license would

" jeopardize [] [ plaintiffs ' ] retention of [their] state

- held motor vehicle sale
license " an d that they would lose their reputation , which they considered

" something greater " th an monetary damages. P laintiffs conceded , however , that
while they possessed " no vested right to have [the license] renewed [ , ] . . . it also
cannot be revoked or denied a rbitrarily. " In response , the Township argued that plaintiffs were not irreparably harmed by the denial of the license and that the status quo was that plaintiffs
had no " license to sell motor vehicles . . . because the license . . . expired. "
Further , the Township argued that " the sale of motor vehicles is prohibite d at [plaintiffs ' property] by [the Township] resolution from 1969. " After oral arguments concluded , the court issued a n oral decision and conforming orders denying plaintiffs ' request for injunctive relief and granting13 A

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the Township ' s application to dismiss plaintiffs ' complaint with prejudice

. In reaching its decision , the court considered the 1969 Township resolution

. In
addition , the court found that " Se ction 466

- 5 of the ordinance provides for the standards for determining qualificatio ns for a license and . . . that this is an annual license . . . expir[ing] on [December 31] of each year. " The court also
determined that plaintiffs ' license " expired at t he end of 2016 ," was not renewed
in 2017 , and the Township denied the 2018 application " because they were not happy with the conditions of the property. " Accordingly , the court ruled that it was within the Township ' s discretion

" for whatever reason . . . to deny the application for renewal o f the license. " T he

court explained that because the license was renewable annually , " [t]here [was] no right to have it renewed ," that " the record does not indicate that . . . there was any ulterior motive " on the part of the Township , and " that it is within the
discretion of the Town ship to renew . . . the license for the sale of motor vehicles

. . . . " This appeal followed. On appeal , plaintiffs argue that: 1) the trial court improperly dismissed plaint iffs ' complaint with prejudice pursuant to Rule 4:6

- 2(e); 2) the trial court erroneously denied plaintiffs ' request for a preliminary injunction , and 3) we14 A

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should " exercise original jurisdiction and provide interim relief for purposes of [any] remand. "
I I. The decision of a municipal board is " presumed to be valid and the party attacking such action has the burden of proving otherwise. " N.Y. SMSA Ltd.
P ' ship v. Bd. of Adj ustment of Twp. of Bernards , 324 N.J. Super. 149 , 163 (App. Div. 1999) (citations om itted) . Courts provide deference to the municipality ' s broad discretion and reverse only where the municipal action was " arbitrary , capricious [ , ] or unreasonable. " Cell S. of N.J. , Inc. v. Zoning Bd. of Adj ustment , 172 N.J. 75 , 81 (2002) (quoting Medici v. BPR Co. , 107 N.J. 1 , 15 (1987)). A municipal board " acts arbitrarily , capriciously , or unreasonably if its findings of fact in support of [its decision] are not supported by the record

. . . or if it usurps power reserved to the municipal governing body or another duly authorized municipal official. " Ten Stary Dom P ' ship v. Mauro , 216 N.J. 16 , 33 (2013) (citations omitted). While a municipal board ' s factfinding is entitled to substantial deference and presumed to be valid , Burbridge v. Twp. of Mine Hill , 117 N.J. 376 , 385 (1990) , its conclusions of law are reviewed de novo. Nuckel v. Little Ferry Plan.
Bd. , 208 N.J. 95 , 102 (2011) (citation omitted). Finally , " [w] hen reviewing the15 A

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decision of a trial court that has reviewed municipal action , we are bound by the
same standards as was the trial court. " Grubbs v. Slothower , 389 N.J. Super.
377 , 382 (App. Div. 2007) (citation omitted).
As noted , in plaintiffs ' first point on appeal , they contend the court
committe d error in dismissing the verified complaint. Specifically , plaintiff s

a rgue they sufficiently pled that : 1) the Township violated their due process rights by failing to provide them a hearing prior to the denial of the 2018 license application; 2) the To wnship acted with an " ulterior motive " in denying the
license , " and that the decision (whatever the motive) was arbitrary , capricious[ , ]
and unreasonable " ; and 3 ) the trial court misapplied the Rule 4:6

- 2 standard by relying on material outside the pleadin gs and failing to convert the matter to one for summary judgment

. W e reject plaintiffs ' claims that the Township violated their procedural due process rights because the Township failed to provide them with a hearing prior to denying their 2018 license application. Although we acknowledge that

" [a]n occupational license is in the nature of a property right ," Santaniello v. N.J. Dep ' t of Health & Sr. Servs. , 416 N.J. Super. 445 , 460 (App. Div. 2010) (quoting Graham v. N.J. Real Estate Comm ' n , 217 N.J. Super. 130 , 135 (App. Div. 1987)) , " [t]here is no protectable property right in continuing o r future16 A

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[licensure] since any existing property interest in the [license] is extinguished upon its expiration. " Id. at 459. Accordingly , " constitutional due process protects against only the improper suspension or revocation of a license . . . . "
Id. a t 460 (quoting Limongelli v. N.J. State Bd. of Dentistry , 137 N.J. 317 , 326 (1993)). It is not disputed that plaintiffs ' license was neither suspended nor
revoked. Even if we assume , as the trial court did in its oral decision , that " in 2016[ , ] [plainti ffs] had a license ," their failure to apply for a license renewal for 2017 pursuant to Section 466

- 5 resulted in the expiration of the license as of
December 31 , 2016. Therefore , plaintiffs possessed no property right that required a hearing prior to deni al of their 2018 application. The Township ' s actions in denying the 2018 license , however , still required a supportable legal
and factual basis , and could not be denied on an arbitrary and capricious basis.
W e agree , however, with plaintiff s ' assertion that the court committed

error when it dismissed the amended verified complaint with prejudice. A fter conducting an appropriate Rule 4:6

- 2(e) analysis , consistent with the standard
detailed in Printing Mart

- Morristown v. Sharp Elecs. Corp. , 116 N.J. 739 , 746 (1989) , we conclude plaint iff s ' amended verified complaint sufficiently ple d colorable claims against the Township.17 A

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In reviewing a dismissal for failure to state a claim under Rule 4:6

- 2(e) , our inquiry is focused on " examining the legal su fficiency of the facts alleged on the face of the complaint. " Ibid. Thus , we must " search[] the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim . . . . " Ibid. (quoting Di
Cristofaro v. Laurel Grove Mem ' l Park , 43 N.J. Super. 244 , 252 (App. Div. 1957)). Generally, when the trial court has considered matters outside the pleadings, the motion to dismiss on the failure to state a claim becomes one for

summar y judgment. See R. 4:6

- 2. Our Supreme Court has nevertheless stated that, "[i]n evaluating motions to dismiss, courts consider 'allegations in the complaint, exhibits attached to the complaint, matters of public record, and
documents that form the basis of a claim.'" Banc o Popular N. Am. v. Gandi , 184 N.J. 161, 183 (2005) (quoting Lum v. Bank of Am. , 361 F.3d 217, 221 n.3 (3d Cir. 2004)). "The purpose of this rule is to avoid the situation where a plaintiff with a legally deficient claim that is based on a particular doc ument can avoid dismissal of that claim by failing to attach the relied upon document."
Lum , 361 F.3d at 221 n.3; see also In re Burlington Coat Factory Sec. Litig. , 114 F.3d 1410, 1426 (3d Cir. 1997) (" [T] he primary problem raised by looking18 A

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to documents outside the complaint

– lack of notice to the plaintiff

– is dissipated 'where plaintiff has actual notice . . . and has relied upon these documents in framing the complaint.'" (quoting Watterson v. Page , 987 F.2d 1, 3

- 4 (1st Cir. 1993)) ). Thus, in revi ewing a motion under Rule 4:6

- 2(e), a court may consider documents referred to in the complaint, matters of public record, or documents explicitly relied on in the complaint, without converting the motion to dismiss into one for summary judgment. See N.J. Citizen Action, Inc. v. C ty. of Bergen , 391 N.J. Super. 596, 605 (App. Div. 2007). 6 Applying the Rule 4:6

- 2 standard , we conclude that plaintiffs ' amended verified complaint pled a " fundament of a cause of action ," Printing Mart

Morristown , 116 N.J. at 7 46 , as to whether the Township ' s decision to deny plaintiffs ' 2018 license wa s arbitrary , capricious , or unreasonable. See Cell S.
of N.J. , 172 N.J. at 81. The Township ' s 2018 resolution merely stated that it
based its denia l " on the repeated and continuous failures of the owners to address the problems with the existing site conditions and numerous violations on the
site. "

6 Based on the court's oral decision, it is clear that it relied on the 1969 Township resolution. As a public record, the court was permitted to rely on that document without converting defendant's application to a summary judgment motion under Rule 4:46

- 2. Banco Popular N. Am. , 184 N.J. at 183.19 A

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Plaintiffs ' complaint challenges the Township ' s finding by alleging that
Section 466

- 5 " contains vagu e standards " upon which the Township used to base
its improper denial of plaintiffs ' application . Indeed , plaintiffs note in their complaint that the Township based the denial " in part , on ' the repeated and continuo[u]s failures of [plaintiffs] to address the problems with the existing site
conditions and numerous violations on the s ite

. '"
P laintiffs aver , however , that they " had not been issued any [s]ummons which [was] not settled and did not have any ' violations ' issued for the premises
since 2011

. " Further , despite the issues with plaintiffs ' property , the Township repeatedly granted plaintiffs licenses until 2016 , when it took no formal action on their application . Moreover , plaintiffs contend in their complaint that despite
their consistent adherence " to the terms of the multiple undocumented

' settlements ' between the parties , the [Township] [has] consistently demanded
more than was demanded " in previous settlements before r enewing plaintiffs '
license. Finally , plaintiffs argue that the Township ' s 2018 resolution denying their application " made no mention of a 1969 variance condition " and that its

" after

- the

- fact reliance on that document tends to prove . . . arbitrary and b ad

faith bases for " the Township ' s action.20 A

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In response , t he Township argues that : 1) because plaintiffs possessed

" no ' right ' to the issuance of a new license ," no cause of action was suggested by the complaint; 2) even if a right existed , the 1969 Townsh ip resolution " took that right away from " plaintiffs ; and 3) that it " considered the factors . . . pursuant to [Section] 466

- 5 and . . . appropriately denied [plaintiffs ' ] applic ation
for a new license . . . . "
As noted , the decision to deny plaintiffs such a license cannot be arbitrary , capricious , or unreasonable. See Cell S. of N.J. , 172 N.J. at 81. P laintiffs sufficiently pled a cause of action by alleging that the Township acted arbitrarily and capriciously in denying its 2018 applicat ion. F or example , it is unclear , particularly in light of the Township ' s acquiescence and resolution of prior disputes with plaintiffs, which specific " site conditions and . . . violations " the Township relied upon and w hat particular standards , if any , p laintiffs were required to meet in order to obtain a license.
Further , we cannot discern what weight the Township gave to the 1969
resolution when it denied plaintiffs ' license. Although the 2018 resolution
makes no mention of the 1969 resolution , the T ownship Code Enforcement officer relied extensively on the resolution before the Township issued its 2018
resolution

. Moreover , the court also relied on the 1969 resolution in its oral21 A

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decision

. 7 Accordingly , we vacate the court ' s August 17 , 2018 order dismissing plaintiffs ' verified complaint with prejudice and remand for further proceedings to sufficiently develop the record to dete rmine whether the Township arbitrarily and capriciously denied plaintiffs ' 2018 license application

. III

. Plai ntiffs next assert that the trial court abused its discretion when it
denied their application for injunctive relief

. We review a trial court ' s decision to deny plaintiffs ' application for a preliminary injunction to determine if the
trial court abused it s discretion. Brown v. City of Paterson , 424 N.J. Super. 176 , 182 (App. Div. 2012) (citing Rinaldo v. RLR Inv. , LLC , 387 N.J. Super. 387 , 395

- 96 (App. Div. 2006)). Abuse of discretion exists " when a decision is made without a rational explanation , inexpl icably depart[s] from established policies ,

7 On remand , the court should also address plaintiffs' argument on appeal "as to whether the municipality is estopped from revoking a license based on an alleged noncompliance with conditions. " (citing Tillberg v. Kearny Twp. , 103 N.J. Super. 324 , 337

- 38 (Law Div. 19 68)). According to plaintiffs , the 1969 resolution "may also be the subject of 'changed circumstances or other good cause warranting a reconsideration by the local authorities.'" (quoting Sherman v. Borough of Harvey Cedars Bd. of Adjustment , 242 N.J. Su per. 421 , 42 9 (App. Div. 1990)). T he court should determine whether , by its inaction regarding the 2016 license application , coupled with its granting of plaintiff's license for the twenty

- eight prior years , the Township was estopped from denying plaintif fs' 2018 license application , and to what extent the 1969 Township resolution formed a basis for its decision.22 A

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or rest[s] on an impermissible basis. " Feigenbaum v. Guaracini , 402 N.J. Super.
7 , 17 (App. Div. 2008) (quoting Flagg v. Essex Cty. Prosecutor , 171 N.J. 561 , 571 (2002)). We should determine " whether there are good reasons . . . to defer to the particular decision at issue. " Flagg , 171 N.J. at 571. Reversal of the trial

court ' s order is proper " only if it ' was not premised upon consideration of all
relevant factors , was based upon consideration of irrelevant or inappropriate
factors , or amounts to a clear error in judgment. '" McDaniel v. Man Wai Lee , 419 N.J. Super. 482 , 498 (App. Div. 2011) (quoting Masone v. Levine , 382 N.J. Super. 181 , 193 (App. Div. 200 5)). A party seeking an injunction must show , by clear and convincing
evidence , that 1) there is a likelihood of imminent and irreparable harm; 2) there is a settled underlying legal right; 3) the material facts are not entirely
controverted and there is a reasonable likelihood of success on the merits; and 4) a balancing of hardships favors the moving party. Crowe , 90 N.J. at 132

- 34.

" Harm is generally considered irreparable in equity if it cannot be redressed adequately by monetary damages. " Id. at 1 32

- 33. As for where there is doubt regarding the moving party ' s ultimate success on the merits , a court has discretion to grant a preliminary injunction to preserve the status quo where " a balancing of the relative hardships substantially favors the movan t . . . . " Waste23 A

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M gmt. of N.J. , Inc. v. Morris C ty

. Mun. , 433 N.J. Super. 445 , 454 (App. Div. 2013).
I n its oral decision , the court relied exclusively on a single Crowe factor to deny plaintiffs ' request for interim injunctive relief , concluding plaintiffs failed to establish a reasonable probability of success on the merits. That determination was solely based on the court ' s statement s that " for whatever

reason , the Township [did] not want to co ntinue " granting plaintiffs a license , and that it was " within [the Township ' s] discretion . . . to deny the application. " The court made no specific finding as to whether plaintiffs suf fered irreparable
harm , whether there was a settled und erlying legal right , or whether the balance of hardships favored plaintiffs. Instead , the court merely deferred to the reasoning of the Township in finding that plaintiffs had no " reasonable prospect
of success on the merits " without examining the remaining Crowe facto rs. Further, a s we have concluded that the reasons underlying the Township ' s determination are unclear and the matter should be remanded for the purpose of developing a more complete record , we similarly vacate the court ' s August 17 , 2018 order denying plaintiffs ' request for injunctive relief. We reject , however , plaintiffs ' request that we exercise original jurisdiction and order interim injunctive relief pending resolution of the issue24 A

- 0426

- 18T3

on remand. Under Rule 2:10

- 5 , appellate cour ts have discretion to exercise

" original jurisdiction as is necessary to the complete determination of any matter
on review. " However , whe re the factual record is insufficiently developed , exercise of original jurisdiction is inappropriate. See , e.g. , Pr ice v. Himeji , LLC , 214 N.J. 263 , 294

- 95 (2013); Brunswick Bank v. Heln Mgmt. , 453 N.J. Super.
324 , 334 (App. Div. 2018). As noted , we are remanding for the purpose of developing the necessary factual record and , therefore , decline to exercise original jurisdiction

. Accordingly , we vacate the August 17 , 2018 orders and remand for further proceedings to permit plaintiffs to take discovery regarding the relevant factual issues supporting the denial of their 2018 license applic ation. On any renewed application , the Township should identify specifically the " repeated and continuous problems and violation s ," along with any other factor upon which it relied in reaching its decision. Nothing in our decision should be interpreted a s expressing our view on the result of the remanded proceedings.
Vacated and remanded for further proceedings

. We do not retain jurisdiction.