SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-1268- 22 ANAND DASH, Plaintiff-Appellant, and NEILL W. CLARK, 1 Plaintiff,

v. TOWNSHIP OF SPARTA ZONING BOARD OF ADJUSTMENT, TOWNSHIP OF SPARTA PLANNING BOARD, and DIAMOND CHIP REALTY, LLC, Defendants-Respondents.

_ ___________________________

Submitted March 18, 2024

– Decided Ap ril 16, 2024 Before Judges DeAlmeida and Berdote Byrne.

1 On March 18, 2023, we granted Neill W. Clark 's motion to remove himself as an appellant, based upon his assertion of changed circumstances. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 t he internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1268

- 22 On appeal from the Superior Court of New Jersey, Law Division , Sussex County, Docket No. L-0 303

- 22. Herold Law, PA, attorneys for appellants (Robert F. Simon and John Peter Kaplan, on the brief). Maraziti Falcon, LLP, attorneys for respondent Township of Sparta Zoning Board of Adjustment (Alyse Landano Hubbard, on the brief). Vogel, Chait, Collins and Schneider, attorneys for respondent Township of Sparta Planning Board (Thomas F. Collins, Jr., and Thomas J ames Molica, on the brief). Giordano, Halleran & Ciesla, PC, attorneys for respondent Diamond Chip Realty, LLC (Matthew Nicholas Fiorovanti and Adam Garcia, on the brief).
PER CURIAM Plaintiff, Anand Dash, appeals from a December 2, 2 022 Law Division order dismissing his prerogative writs complaint ag ainst defendants Township of Sparta Zoning Board of Adjustment (Zoning Board) , Township of Sparta Planning Board (Planning Board), and Diamond Chip R ealty, LLC (DCR). Plaintiff contends the trial court erred in dismiss ing his complaint instead of ruling he was entitled to review by the Zoning Board in accordance with our holding in DePetro v. Township of Wayne Planning Board, 367 N. J. Super. 161 (App. Div. 2004). We affirm substantially for the reasons set forth by Judge3 A- 1268

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Stuart A. Minkowitz in his thorough and well-reason ed, twelve-page opinion rendered on December 2, 2022. We incorporate by reference the factual findings an d legal conclusions contained in Judge Minkowitz's decision. We add th e following comments. DCR owns real property in the Township of Sparta lo cated at 33 Demarest Road (the property). In November 2021, DCR submitt ed a land development application to the Planning Board, requesting preli minary site plan approval for a warehouse facility in the economic development (E D District ) z one , which is

an explicitly permitted use within the ED District as provided by the Township's Comprehensive Land Development Code (The Township C ode). The Planning Board held the first two hearings on t he merits of DCR's application

. Plaintiff, a resident of the Township, challenged DCR's proposed use and asserted the application fit the definition of a trucking terminal , which is a conditional use within the code. While DCR's site plan application was still pending before the Planning Board, plaintiff applie d to the Zoning Board , pursuant to N.J.S.A. 40:55D-70(b), 2 seeking an interpretation of section 18 -4.29 of the Township Code

. Plaintiff submitted a "rider" attached to the application,

2 This statute authorizes zoning boards to "hear and decid e requests for interpretation of the zoning map or ordinance." N. J.S.A. 40:55D-70(b).4 A- 1268

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explaining he was seeking a determination of whether DCR's proposed application met the definition of a permitted use warehouse pursuant to the ED District , conditional use trucking terminal, or "a use not pe rmitted in the . . . Economic Development District." Relying on DePetro, plaintiff argued the Zoning Board was the proper entity to make this det ermination, not the Planning Board. Two days later, the Planning Board proceeded with t he next hearing, in which plaintiff questioned whether the Planning Boa rd had jurisdiction to hear the current application because there was an issue of interpretation of the Township's ordinance. He again argued the Zoning Board , not the Planning Board, had the power to interpret an ordinance purs uant to DePetro. He further argued, because there was a pending interpretation application before the Zoning Board, the proceeding before the Planning Board mus t be stayed. Upon the advice of counsel, the Planning Board permitted DCR to con tinue presenting its application, finding a site plan application hearin g is meant to determine whether an application conforms with the Township's ordinance , and it had previously asserted jurisdiction to hear the applic ation for a warehouse. Lastly, it determined it did not have the authority to stay the application.5 A- 1268

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The Zoning Board determined it did not have jurisdi ction pursuant to the Municipal Land Use Law (MLUL) to review a matter th en pending before the Planning Board. It found the facts in DePetro were distinguishable from the present matter and concluded the Planning Board cur rently had jurisdiction over the application for a warehouse, and it ha d the authority to determine whether the site plan application conformed with the zoning ordinance. In essence, DCR had the burden to show the purpose listed in its application was for a permitted use in the zone as a warehouse, and the Planning Bo ard would decide whether it met the ordinance. If the Planning Board decide d the application was not for a warehouse, the Zoning Board would then have juris diction to hear any further applications by DCR. On July 28, 2022, plaintiff filed an action in lieu of prerogative writs in the Law Division, challenging the Zoning Board's de cision and seeking a determination that the use proposed by DCR was eith er not permitted in the ED District, or was for a conditionally permitted truc king terminal use within the
ED District. Either determination would require a use variance that could be granted only by the Zoning Board. Additionally, he requested th e court determine the Zoning Board, rather than the Plannin g Board, had jurisdiction to consider DCR's land development application and fin d the "Zoning Board's6 A- 1268

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actions resulted in an intentional deprivation of [ his] property and due process rights." DCR filed a motion to dismiss the complaint on Sept ember 9, 2022, seeking dismissal without prejudice for lack of jur isdiction. The Planning Board and Zoning Board later joined DCR's motion to dismi ss. On December 2, 2022, Judge Minkowitz, in a comprehensive order and written statement of reasons , concluded , because N.J.S.A. 40:55D-25(a)(2) gave planning boards the express authority to review sit e plan applications and the Planning Board in this matter had jurisdiction over DCR's application for a warehouse, the Planning Board had jurisdiction, pur suant to the statute, to review DCR's "site plan application to determine if the proposed use for the [p]roperty is permitted, conditional, or prohibited ." Jud ge Minkowitz also concluded plaintiff had not requested an interpreta tion of the zoning ordinance , "[r]ather, [he] asked the Zoning Board to apply the zoning ordinances to the proposed use in the DCR application to see if the proposed use was a permitted, conditional, or prohibited use in the Township's ED ." On appeal, plaintiff continues to rel y on our holding in DePetro to argue the Zoning Board is the only authorized board pursu ant to the MLUL to interpret a zoning ordinance , and as a result, the Zoning Board was required to r espond7 A- 1268

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to his interpretation application. He also asserts the Planning Board must be enjoined from continuing its hearings over the site plan application. Lastly, plaintiff asserts his due process rights were viola ted when the Zoning Board limited his testimony to five minutes. We apply a plenary standard of review from a trial court's decision to grant a motion to dismiss pursuant to Rule 4:6-2(e). Rez em Fam. Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 114 (App . Div. 2011) (citing Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div. 2005)). No deference is owed to the trial court's conclusions. Ibid

. Additionally, when reviewing a trial court's decision regarding the validity of a local board's determination, "we are bound by the same standards as was the trial court." Fallone Prop., L.L.C. v. Bethleh em Twp. Plan

. Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). We review de nov o local boards' determinations on questions of law. Wilson v. Bric k Twp. Zoning Bd. of Adjustment, 405 N.J. Super. 189, 197 (App. Div. 200 9).
We conclude Judge Minkowitz properly granted the moti on to dismiss because plaintiff did not request the Zoning Board interpret an ordinance; he requested the Zoning Board determine w he ther DCR's application was a permitted, conditional, or prohibited use in the To wnship's ED District. The8 A- 1268

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Planning Board, not the Zoning Board, has jurisdict ion over this type of question. We agree with Judge Minkowitz the Zoning Board properly declined jurisdiction because the Planning Board had jurisdi ction over DCR's site plan application and wa s permitted to determine whether the application co nform ed with the zoning ordinance, pursuant to N.J.S.A. 40:55D-2 5(a)(2). Notwithstanding the exclusive authority of the Zoning Board to hear interpretation challenges pursuant to N.J.S.A. 40:5 5D-70(b), plaintiff's application was not an application for interpretation of the ordinance an d the Zoning Board was not required to determine the subs tance of the application. Plaintiff "asked the Zoning Board to apply the zoni ng ordinances to the proposed . . . DCR application," then pending befor e the Planning Board, to determine whether the use aligned with a trucking terminal, warehouse, or a prohibited use. The Law Division's determination i n this matter is not a departure from DePetro. Pursuant to N.J.S.A. 40:55D- 20 , the Zoning Board did not have authority to substitute its judgment for t hat of the Planning Board. To the extent we have not addressed plaintiff's re maining arguments, we find they are without sufficient merit to warrant discuss ion in a written opinion.
R. 2:11 -3(e)(1)(E). Affirmed.