SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0426-18T3

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 cause for appellants 

(Maurice J. Maloney, attorney; Jeff Edward Thakker,

of counsel; Maurice J. Maloney, on the briefs).

Kevin B. Riordan argued the cause for respondents

(Kevin B. Riordan LLC, attorneys; Kevin B. Riordan,

Gary P. Mc Lean, and Dina R. Khajezadeh, 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NOT FOR PUBLICATION WITHOUT THE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, 2019
2

A-0426-18T3

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 dismissed 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 applicable standard of 

review, we vacate the August 17, 2018 orders and remand for further 

proceedings.

I.

The facts underlying this appeal relate to the denial by defendants 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.

The Township adopted ordinances, codified in Chapter 466 of the 

Township's Municipal Code, to regulate motor vehicle sales and storage 
3

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pursuant to N.J.S.A. 40:52-1 and -2.1 The ordinances proscribe "any person,

persons, firm, partnership[,] or corporation [from] engag[ing] in the business of 

selling or exchanging motor vehicles without . . . obtain[ing] a license . . . ." An 

application for such a license must contain information related 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 offering 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 exchange 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

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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 . . . . " The 

Council considers the following factors:

(1) The Zoning Ordinance of the Township[;]

(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 all 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 history 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 timeliness 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 municipal 
5

A-0426-18T3

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 renewals. 

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 series of disputes between the parties began. 

Specifically, in 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 following year, the Township complained regarding excessive

vegetation on the property. According to plaintiffs, the dispute was "amicably 

resolved" by plaintiffs "replac[ing] vegetation, install[ing] fencing and a pole 

. . . and agree[ing] to obtain a permit from the Ocean County Soil Conservation 

District." As a result, the Township renewed plaintiffs' license for the 1995

calendar year. 
6

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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." The Township

also notified plaintiffs that it would not recommend renewal of plaintiffs' 2011 

license because inspection reports were "not favorable." Subsequently, in 

March 2011, the Township issued plaintiffs a municipal court summons again

for keeping "too many unregistered vehicles" on the property, which

corresponded with the December 2010 violation notice. After plaintiffs 

removed ten of sixty-eight vehicles, the municipal court summons was 

dismissed and the Township renewed plaintiffs' 2011 license.

A number of months later, in October 2011, the Township issued plaintiffs 

another municipal court summons alleging that plaintiffs were unlawfully 

"operating 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-paint] 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 every 
7

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vehicle had 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 

schedule 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] 2016 license renewal application . . . ." The 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. Three days later, a representative of the 
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Township Code Enforcement Office contacted plaintiffs and stated he "had the 

minutes from the 1969 Board of Adjustment hearings 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. Plaintiffs

requested "details and copies of the documents," 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 plaintiffs 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] 

application would be considered," but according to plaintiffs, the Township still

failed to provide a written list of concerns at the property that needed to be 

rectified. At another meeting shortly thereafter, the Township's Business 

Administrator informed plaintiffs that 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

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Throughout 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 resolution which 

stated that "[t]he sale of motor vehicles shall not be permitted" on plaintiffs'

property. 

In March 2018, a Township 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, plaintiffs 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-0426-18T3

Approximately one month later, plaintiffs filed an order to show cause and 

a verified complaint in lieu of prerogative writs, pursuant to Rule 4:69-1,

3

in the 

Law Division4seeking injunctive relief, the "issuance of the renewal licenses 

. . . without restrictions[,]" and "authority to continue to legally . . . [sell] motor 

vehicles 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 substantially 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' 2018 license application; 5) 

selectively enforced Section 466-5 by granting licenses to "other business 

3 An 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 also 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 Division. 
11 A-0426-18T3

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 judge signed an order to show cause as a 

summary proceeding, pursuant to Rule 4:67-1(a).

5

 Before the hearing on the 

5

 An 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 statute 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 inconsistent 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. We nevertheless

interpret the order to show cause and verified complaint to seek, in part, interim 

relief as authorized by Rule 4:52.
12 A-0426-18T3

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, the court heard oral arguments on 

August 17, 2018 to address plaintiffs' request for injunctive relief and the 

Township's cross-motion to dismiss. Plaintiffs 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" and that they would lose their reputation, which they considered

"something greater" than monetary damages. Plaintiffs conceded, however, that 

while they possessed "no vested right to have [the license] renewed[,] . . . it also 

cannot be revoked or denied arbitrarily." 

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 prohibited at 

[plaintiffs' property] by [the Township] resolution from 1969." 

After oral arguments concluded, the court issued an oral decision and 

conforming orders denying plaintiffs' request for injunctive relief and granting 
13 A-0426-18T3

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 "Section 466-5 of the ordinance provides for the 

standards for determining qualifications 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 the 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 of the license." The 

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 Township to renew . . . the license for the sale of motor vehicles 

. . . ." This appeal followed.

On appeal, plaintiffs argue that: 1) the trial court improperly dismissed 

plaintiffs' complaint with prejudice pursuant to Rule 4:6-2(e); 2) the trial court 

erroneously denied plaintiffs' request for a preliminary injunction, and 3) we 
14 A-0426-18T3

should "exercise original jurisdiction and provide interim relief for purposes of 

[any] remand." 

II.

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 Adjustment of Twp. of Bernards, 324 N.J. Super. 149, 163 (App. 

Div. 1999) (citations omitted). 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 

Adjustment, 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 the 
15 A-0426-18T3

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 

committed error in dismissing the verified complaint. Specifically, plaintiffs

argue 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 Township 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 pleadings and failing to convert the matter to one 

for summary judgment. 

We 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 or future 
16 A-0426-18T3

[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. at 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[,] [plaintiffs] 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 denial 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. 

We agree, however, with plaintiffs' assertion that the court committed 

error when it dismissed the amended verified complaint with prejudice. After 

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 plaintiffs' amended verified complaint sufficiently pled 

colorable claims against the Township. 
17 A-0426-18T3

In reviewing a dismissal for failure to state a claim under Rule 4:6-2(e),

our inquiry is focused on "examining the legal sufficiency 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 

summary 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.'" Banco 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 document 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 looking 
18 A-0426-18T3

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 reviewing 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. Cty. 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 MartMorristown, 116 N.J. at 746, as to whether the Township's decision to deny 

plaintiffs' 2018 license was 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 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." 

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-0426-18T3

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

Section 466-5 "contains vague 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 site.'"

Plaintiffs 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 renewing 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 badfaith bases for" the Township's action.
20 A-0426-18T3

In response, the 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 Township resolution "took 

that right away from" plaintiffs; and 3) that it "considered the factors . . . 

pursuant to [Section] 466-5 and . . . appropriately denied [plaintiffs'] application 

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. Plaintiffs 

sufficiently pled a cause of action by alleging that the Township acted arbitrarily 

and capriciously in denying its 2018 application. For 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 what particular standards, if any, plaintiffs 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 Township 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 oral 
21 A-0426-18T3

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 determine whether the Township arbitrarily 

and capriciously denied plaintiffs' 2018 license application.

III.

Plaintiffs 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 its 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, inexplicably 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. 1968)). 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. Super. 421, 429 (App. 

Div. 1990)). The 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 plaintiffs' 

2018 license application, and to what extent the 1969 Township resolution 

formed a basis for its decision. 
22 A-0426-18T3

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. 2005)). 

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 132-33. 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 movant . . . ." Waste 
23 A-0426-18T3

Mgmt. of N.J., Inc. v. Morris Cty. Mun., 433 N.J. Super. 445, 454 (App. Div. 

2013).

In 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 statements that "for whatever 

reason, the Township [did] not want to continue" 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 suffered irreparable 

harm, whether there was a settled underlying 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 factors. 

Further, as 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 issue
24 A-0426-18T3

on remand. Under Rule 2:10-5, appellate courts have discretion to exercise 

"original jurisdiction as is necessary to the complete determination of any matter 

on review." However, where the factual record is insufficiently developed,

exercise of original jurisdiction is inappropriate. See, e.g., Price 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 application. On any renewed 

application, the Township should identify specifically the "repeated and 

continuous problems and violations," along with any other factor upon which it 

relied in reaching its decision. Nothing in our decision should be interpreted as 

expressing our view on the result of the remanded proceedings.

Vacated and remanded for further proceedings. We do not retain 

jurisdiction.