SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-3944-21 

DEBRA SUZETTE GRIMM, 

 Plaintiff-Appellant, 

v.

WALL TOWNSHIP ZONING 

BOARD OF ADJUSTMENT, 

DBI PROPERTY MANAGEMENT, 

LLC, and DEARBORN 

BUILDERS, INC., 

 Defendants-Respondents. 

______________________________

Argued October 17, 2023 – Decided November 17, 2023 

Before Judges Whipple, Enright and Paganelli. 

On appeal from the Superior Court of New Jersey, Law 

Division, Monmouth County, Docket No. L-3790-20.

Zoe N. Ferguson argued the cause for appellant 

(Lieberman Blecher Sinkevich, PC, attorneys; Stuart J. 

Lieberman, of counsel and on the briefs; Zoe N. 

Ferguson, on the briefs). 

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-3944-21

Thomas J. Hirsch argued the cause for respondents DBI 

Property Management, LLC, and Dearborn Builders, 

Inc. 

PER CURIAM 

 In this zoning matter, plaintiff Debra Suzette Grimm appeals from the 

March 16, 2022 order dismissing with prejudice count two of her complaint in 

lieu of prerogative writs against defendants Wall Township Zoning Board of 

Adjustment (Board), DBI Property Management LLC (DBI PM), and Dearborn 

Builders, Inc (DBI).1 We affirm. 

I.

 We discern the facts from the motion record. Edward Dearborn is the 

principal owner and officer of DBI, and the sole member of DBI PM. DBI has 

been in the business of constructing custom homes in Monmouth and Ocean 

Counties since 2001. 

In November 2018, DBI purchased property at 2422 Route 34 in Wall 

Township (the Property). Two months later, Dearborn filed an application with 

the Board, seeking a use variance, bulk variance relief, and a waiver of site plan 

1

 Notably, plaintiff does not appeal from the August 27, 2021 and July 27, 2022 

orders, respectively dismissing with prejudice counts one and three of her 

prerogative writs complaint. 
3 A-3944-21

approval. In his application, Dearborn stated he "propose[d] to use a portion of 

the existing building [on the Property] for office space . . . and the remainder of 

the building [would] be used for the manufacture of custom cabinets, windows 

and doors to be utilized in the homes which [DBI] constructs." Subsequently, 

DBI PM and DBI generated a public notice in a local newspaper about the use 

variance application, confirming Dearborn intended to use the Property "for 

office space and a woodshop for the fabrication of custom wood cabinetry." 

Dearborn needed a use variance to conduct his business on the Property because 

a prior use variance issued for the Property was "for a manufacturing 

use . . . limited to [the] manufacture of canvas sails." 

Plaintiff lives directly across the street from—and within 200 feet of—the 

Property. She received no notice of Dearborn's application, as required under 

N.J.S.A. 40:55D-12(b). The parties agree the lack of notice stemmed from: (1) 

the inadvertent omission of plaintiff's name from the certified list of properties 

within 200 feet of the Property maintained by Wall Township's Tax Assessor; 

and (2) the fact Dearborn's attorney properly relied on that incomplete list to 

notify nearby property owners about the use variance application. 

On March 6, 2019, the Board conducted a public hearing on Dearborn's 

application. During Dearborn's testimony, his attorney asked him to describe 
4 A-3944-21

"the type of woodworking activity and the type of equipment that 

[he] . . . propose[d] to have in the building" on the Property. Dearborn replied: 

It's a very standard woodworking shop, large joiners, 

table saws, planers, things of that nature. The wood 

comes in, it typically gets delivered rough. 

We . . . use . . . maple, [and] mahogany . . . . [I]t . . . 

sits on a shelf in a controlled environment and stabilizes 

over time. 

 . . . We're basically . . . pulling wood off the shelf, 

sizing it on the machinery and then moving forward to 

shaping it into cabinets or railings or whatever it is. 

 Dearborn's counsel then asked Dearborn to tell the Board "about the types 

of woodworking equipment that [he had] and the types of air filtration 

equipment that [he] use[d] to ensure that none of the fumes or the sawdust leave 

the premises." (Emphasis added). Dearborn answered: 

 So anyway, like I said, table saws, joiners, 

planers, all of the machines are hooked up with a series 

of pipes which go into a dust collection system and then 

from there[,] . . . the dust from the machines drops into 

bags. It's bagged and then we bring it out and put it in 

the dumpster. 

[(Emphasis added).] 

Dearborn also stated he operated his Point Pleasant facility the same way. 

Accordingly, his attorney asked if Dearborn had "had any complaints or 
5 A-3944-21

problems with respect to any sort of odor." Dearborn responded, "no, never. 

No." 

 Dearborn's engineer, Jeffrey Carr, also testified at the March 6 hearing. 

He stated Dearborn's proposed use did not include selling cabinets "for retail." 

Instead, the cabinets would be "custom built." In describing "the positive 

criteria and the particular suitability of this site for . . . Dearborn's use," Carr 

stated, "[w]e are effectively doing no improvements to the site. We're not 

expanding it." Additionally, Carr testified Dearborn's proposed use of the 

property was "not something that w[ould] be a change in the neighborhood." 

When Dearborn's attorney asked Carr if "the Board could grant this use 

variance without substantially, detrimentally impacting the zone plan or the 

zoning ordinance," Carr answered, "[a]bsolutely." Also, in response to 

Dearborn's attorney's question about whether there would be "any negative 

impact on the surrounding properties or the surrounding neighborhood from the 

grant of the use variance," Carr responded, "[n]o, none whatsoever. In fact, I

think that's a positive rather than [a] negative." 

The Board unanimously approved the use variance, subject to various 

conditions, including: a restriction on Dearborn's use of off-site parking; a 

prohibition on "outdoor storage or fabrication," and the need for him to "return 
6 A-3944-21

to th[e] Board" to "obtain[] appropriate use variance and approval" for "[a]ny 

expansion of the existing building." On March 20, 2019, the Board published 

Resolution 01-2019 (2019 Resolution), memorializing its approval of the use 

variance, as well as "the grant of bulk variance relief . . . and the waiver for 

preliminary and final site plan approval," subject to Dearborn's compliance 

"with all the . . . conditions which [were] made a continuing part of th[e] 

resolution of approval." The resolution included the Board's approval for the 

Property to be used "as an office and millwork and trim woodwork production 

site for items intended to be incorporated in construction conducted off[-]site." 

The 2019 Resolution also referenced Dearborn's testimony from the 

March 6 hearing, noting he "propose[d] to use a portion of the existing building 

[at the Property] as office space and the remainder of the building . . . for the 

fabrication and millwork of custom cabinets, windows and doors to be 

incorporated in homes which [DBI] constructs off site" and to meet with 

"prospective customers." Additionally, the resolution also referred to his

testimony that, "[a]ll of the machinery utilized in connection with woodworking 

[would be] connected to dust collector systems[,] which ma[de] the removal of 

dust from the premises extremely efficient and safe." 
7 A-3944-21

Further, the 2019 Resolution referenced Carr's testimony from the March 

6 hearing, stating he opined that "because of the self[-]contained nature of the 

fabricating activity and the limited on[-]site storage of lumber[,] as well as the 

efficient removal of dust and particulates from the air, these carefully managed 

activities [would] not have any impact upon the surrounding residential property 

uses." (Emphasis added). 

In April 2019, Dearborn applied for a zoning permit to install a "Binks 

Open Face Spray Booth" and a "paint booth exhaust" on the Property. Neither 

he nor his engineer had mentioned an intent to install these items when they 

testified at the March 6 public hearing. Dearborn received approval for the 

permit on August 2, 2019, and began using the spray booth "on or about 

September 29, 2019." 

Plaintiff never appealed from the issuance of the zoning permit for the 

spray booth or its exhaust system, even though she noticed they 

"discharge[d] . . . noxious chemicals and fumes into the air through the roof-top 

discharge stack" "on a regular basis." In fact, soon after Dearborn started using 

the spray booth, she contacted him about her observations. Dearborn advised 

her he would do what he could to resolve any odor issues. 
8 A-3944-21

Plaintiff subsequently lodged complaints about the spray booth and 

exhaust system with local and county officials, and the Department of 

Environmental Protection, expressing concern about the odors coming from the 

Property. However, Dearborn was never cited for any violations related to his 

use of the spray booth and exhaust pipe, including any violations of Wall 

Township's odor ordinance. 

In November 2019, Dearborn filed an application for a second use 

variance, seeking to expand the square footage of the first and second floors of 

the building on the Property to accommodate a showroom and second-floor 

office space for employees. The architectural plans accompanying his 

application showed the existing spray booth and exhaust pipe on the Property. 

Plaintiff received notice of the second use variance application and 

appeared at the May 20, 2020 public hearing to address it. When the Board 

elicited public comment, plaintiff testified she'd "had a few conversations 

with . . . Dearborn about the smokestack and the fumes that [were] . . . coming 

over to [her] property and . . . to the businesses next door." She stated Dearborn 

"had discussed . . . maybe . . . doing something so that the fumes [went] out 

towards Route 34," so she "wanted to see how that[ was] going to be addressed." 
9 A-3944-21

The Board invited Dearborn to respond to plaintiff's inquiry. He testified 

he intended "to move the exhaust pipe for the spray booth . . . to the east o[f] the 

building," and had ordered "parts and [a] filter . . . for that and [was] waiting for 

[them] to come in." The Chairwoman asked plaintiff to describe the fumes she 

detected and "how often" she smelled them. Plaintiff answered, 

It's horrific. . . . [I]f I'm out in the backyard[,] I 

have to go inside. . . . Sometimes I'll smell it as long as 

[twenty] minutes, but as often as they paint is as often 

as I'll smell it if I'm out in the yard. . . . I think they're 

painting twice a day now, . . . so if I'm outside when 

they're painting[,] I have to go in my house. 

And I know the businesses on either side, they 

smell it as well. So[,] it's pretty bad. And . . . I've 

talked to . . . Dearborn[] a few times and he's been very 

kind to try different solutions[,] but nothing seems to 

have worked. 

In response to further questioning from the Board, Dearborn stated if he 

rerouted the exhaust pipe connected to the spray booth and vented it away from 

plaintiff's property, he believed "it would . . . push the fumes out to the Route 

34 side of the building" and plaintiff would no longer smell the odor. The 

Board's attorney remarked, "there must be some type of standard here that [DBI 

PM and DBI] have to comply with," prompting the following exchange: 

BOARD MEMBER McBARRON: I don't remember 

this coming up in the first [use variance] application. 
10 A-3944-21

BOARD MEMBER HEARN: Me neither. 

CHAIRWOMAN DeSARNO: I don't recall it either. 

[BOARD'S COUNSEL]: There was no 

discussion . . . about [a] spray booth. 

[UNIDENTIFIED] BOARD MEMBER: No, there was 

not. 

After this exchange, Dearborn's counsel asked to adjourn the hearing to allow 

Dearborn time to "ameliorate th[e] condition" plaintiff described. The Board 

agreed and postponed the matter. 

When the Board reconvened on July 8, 2020, Dearborn testified he

upgraded the spray booth's exhaust system and reduced the odors emanating 

from it. He explained: 

[I]nitially, when I set up the spray booth, it was running 

at a very high rate of speed. And what was happening 

was the actual paint was being sucked up and exhausted 

out of the building which . . . made the odors, you know, 

bad. 

I [installed] . . . a manometer[,] and that 

reduce[d] the speed of the fan[,] and that stopped 

pulling the paint up the dust pipe and solved the odor 

issue. 

. . . [W]e also installed a velocity cone on top of

the exhaust[,] . . . . allow[ing] the fan to run at a much 

higher rate of speed and it exhausts the fumes from the 

building at a higher rate of speed. 
11 A-3944-21

[(Emphasis added).] 

Similarly, Dearborn's architect testified about the upgrades to the spray 

booth's exhaust pipe. He stated: 

[W]e [installed] this flow meter . . . which basically 

senses the fumes, and then runs the fan accordingly. So 

it does not suck out any more air than . . . required. . . . 

. . . . 

 . . . [I]f the problem still persists, then[,] of 

course[,] we will think of . . . additional remedies. But 

for now[,] I think it's a pretty good solution . . . we came 

up with. 

 Plaintiff also testified at the July 8 hearing. She stated: 

[M]y major issue has been the smell and I am worried 

going forward. I mean, it's certainly a lot better. In the 

beginning [Dearborn] said something was broken on 

[the spray booth] and . . . honestly it smelled like 

something had exploded, a glue factory had 

exploded. . . . [I]t's not as bad but I . . . didn't move 

here to have to smell factory fumes at all. . . . You 

know, I have the nice sea breeze. That's what I want to 

smell. I don't want to smell chemicals in the air. 

After plaintiff asked the Board what could be done if the odor problem persisted, 

a Board member asked Dearborn how frequently the spray booth operated in a 

"typical week[,] generating any kind of smell at all." Dearborn answered, "it's 

different from week to week, but . . . . I would say maybe an hour, two hours a 

day." 
12 A-3944-21

Before the Board voted on the second use variance application, Dearborn's 

engineer advised the Board, 

I think we're heading in the right direction. The only 

point I want to make is . . . the spray booth is part of the 

operation in the sense that it was [already] approved on 

the [prior] use variance. That's not part of the 

application tonight[,] for the spray booth, it just

happens to be an issue that was brought up. 

[(Emphasis added).] 

The Board unanimously approved the second use variance application at 

the conclusion of the July 8 hearing, subject to various conditions of approval 

placed on the record. On October 7, 2020, the Board issued Resolution 6-2020

(2020 Resolution), formally approving the application and permitting Dearborn 

to expand the building on the Property "to include an additional 1,163 square 

feet of second floor office space" and "a new first floor one[-]story [ninetythree] square foot addition." The 2020 Resolution expressly stated: 

the Board expects that [Dearborn] shall comply with all 

pertinent [T]ownship ordinances or county regulations 

with regard to the emission or discharge of odors from 

this facility. The Board is aware that the spray booth 

was a part of the operation that was previously 

approved by this Board (Resolution No. 1-2019). 

. . . [Dearborn] is expected to comply with 

Township Ordinance Section 140-171 relating to 

odors[,] and further agrees that should a nuisance be 
13 A-3944-21

determined to exist that [he] will address those 

offens[ive] odors with a view towards removal of same 

or, in the alternative, shall return to this Board to 

identify a methodology that will ensure proper and safe 

containment. The . . . justification for grant of use 

variance relief set forth in the Board's prior resolution 

is again affirmed. 

With the resolution of the odor problem 

emanating from the spray booth, the benefits of this 

application as a whole advance the purposes of the 

zoning including the public welfare. 

[(Emphasis added).] 

In November 2020, plaintiff filed a three-count complaint in lieu of 

prerogative writs against the Board, DBI PM, and DBI. In count one, she alleged 

that when Dearborn requested the first use variance, he "misrepresented . . . the 

[Property] would be used solely for the fabrication of cabinetry and millwork 

for off-site assembly into custom homes . . . and would be entirely self-contained 

within the structure." In count two, plaintiff asserted that when Dearborn 

applied for the second use variance, he "failed to . . . meet the substantial 

requirements to justify a use variance" and "continued to misrepresent the use, 

and the extent of the use and discharge of the spray booth . . . and the impact of 

the noxious fumes being discharged into the air from the site." Finally, plaintiff 

alleged in count three that "[t]he fumes . . . emitted from the [Property] are 

noxious and offensive in smell, are believed to possibly create or aggravate 
14 A-3944-21

health . . . problems[,] . . . and generally create a nuisance . . . to nearby residents, 

including . . . [p]laintiff."

Based on these allegations, plaintiff asked for a judgment: (1) 

"[i]nvalidating the March 20, 2019 Resolution"; (2) "invalidating the . . . 2020 

[Resolution] and requiring [DBI PM and DBI] to remove any and all expansions 

of the site"; (3) enjoining DBI PM and DBI from "all future operations on the 

[P]roperty, inclusive of the spray booth"; and (4) awarding her punitive 

damages, counsel fees and costs. 

In May 2021, DBI PM and DBI moved for partial summary judgment to 

dismiss the first count of the complaint, alleging it was time barred under Rule 

4:69-6.2 In the statement of uncontested material facts supporting the motion, 

counsel for DBI PM and DBI represented that Dearborn incurred over $532,000 

in construction and improvement costs after the Board approved the first use 

2

 Rule 4:69-6(a) provides "[n]o action in lieu of prerogative writs shall be 

commenced later than [forty-five] days after the accrual of the right to the 

review, hearing or relief claimed, except as provided by paragraph (b) of this 

rule." The Rule "is designed to give an essential measure of repose to actions 

taken against public bodies." Tri-State Ship Repair & Dry Dock Co. v. City of 

Perth Amboy, 349 N.J. Super. 418, 423 (App. Div. 2002) (quoting Wash. Twp. 

Zoning Bd. of Adjustment v. Wash. Twp. Plan. Bd., 217 N.J. Super. 215, 225 

(App. Div. 1987)). 
15 A-3944-21

variance. Plaintiff opposed the motion and cross-moved for partial summary 

judgment on the first and third counts of her complaint. 

Judge Owen C. McCarthy heard argument on the cross-applications on 

August 27, 2021. During the hearing, plaintiff's counsel opposed dismissal of 

the first count of the complaint and claimed the judge should extend the time 

limits under Rule 4:69-63 because "[i]t wasn't until [Dearborn's] second 

application in . . . 2020 that [plaintiff] understood . . . there was an 

allegation . . . th[e spray] booth was approved in 2019." Judge McCarthy 

rejected this argument, finding no "basis under [Rule] 4:69-6 to expand the 

3

 Under Rule 4:69-6(c), a "court may enlarge the period of time provided 

in . . . [Rule 4:69-6(a)] where it is manifest that the interest of justice so 

requires." We have broadly interpreted the ability of a trial court to enlarge the 

time period for filing a complaint in lieu of prerogative writs. See Cohen v. 

Thoft, 368 N.J. Super. 338, 345-47 (App. Div. 2004) (holding the "interest of 

justice" standard under Rule 4:69-6(c) exceeded the categories of cases 

previously identified as subject to enlargement, namely cases "involving[:] (1) 

important and novel constitutional questions; (2) informal or [e]x parte 

determinations of legal questions by administrative officials; and (3) important 

public rather than private interests which require adjudication or clarification"); 

see also Mullen v. Ippolito Corp., 428 N.J. Super. 85, 106 (App. Div. 2012). 

Thus, those three categories were "not intended to be exhaustive." Hopewell 

Valley Citizens' Grp. v. Berwind Prop. Grp. Dev. Co., L.P., 204 N.J. 569, 583-

84 (2011). Our Supreme Court also has instructed that even when "the right to 

relief has accrued, the interests of justice require, at least, that the litigant be 

permitted . . . to exhaust all administrative remedies before commencing an in 

lieu action." Schack v. Trimble, 28 N.J. 40, 49 (1958). 
16 A-3944-21

[forty-five]-day period." Accordingly, he entered an order, granting DBI PM 

and DBI's partial summary judgment motion and dismissing the first count of 

plaintiff's complaint. He also signed a companion order on August 27, denying

plaintiff's cross-motion. 

 In January 2022, Judge McCarthy heard argument regarding plaintiff's 

request under count two of her complaint to invalidate the 2020 Resolution. 

Plaintiff's counsel contended this relief was appropriate because the Board 

arbitrarily and capriciously granted DBI PM and DBI a second use variance 

based on the false premise the spray booth was part of the operation approved 

in the 2019 Resolution. Counsel explained, "[t]he problem is . . . that while the 

2020 [R]esolution . . . state[d] that [the spray booth] was approved as part of the 

2019 [Resolution], the spray booth was never mentioned once, not even by word 

or by concept[] in 2019." Additionally, counsel contended "it would 

appear . . . there was an attempt to hide [the spray booth]. . . . because in 2019 

when . . . Dearborn was asked [at the March 6 public hearing] to explain his 

[woodworking] process[,] . . . he didn't indicate anything at all about a . . . spray 

booth." Dearborn "was asked expressly about odors by his attorney, . . . and his 

response related to . . . sawdust, and that was it." 

Plaintiff's counsel added: 
17 A-3944-21

The spray booth's a big deal. It actually cuts 

through the roof and it's vented. And so, it's not . . . an 

incidental piece of equipment[,] . . . and when it's 

vented, the odors . . . are released into the 

environment . . . . 

. . . [Y]ou would poison everybody if you didn't 

vent it. . . . It's a big deal and yet . . . never once was it 

mentioned. 

Further, counsel argued that while DBI PM and DBI posited it was common 

knowledge that a spray booth would be included in "a cabinet-making 

operation," "there [were] no experts that sa[id] that," and "the owner of the 

business didn't mention it when he was asked to explain the [woodworking] 

processes" at the March 6, 2019 hearing. 

In response, counsel for DBI PM and DBI stated that in 2020, when "the 

Board [considered Dearborn's] . . . application to expand the use variance 

previously granted" it "clearly had jurisdiction to continue any discussion it 

want[ed] . . . about the . . . ongoing operation of the . . . business." Additionally, 

counsel stated the Board took plaintiff's concerns about odor issues "very 

seriously" during the 2020 public hearings and it "concluded that if there[ were 

future]. . . complaint[s]" about odors that could not be resolved, Dearborn 

"would have to come back to the Board." Counsel also argued the Board did not 

perceive the odor issue "as something that . . . prevented [it] from granting the 
18 A-3944-21

[second] use variance, but simply as an operational aspect that [it] need[ed] to 

take control of and make sure it[ was] operating correctly." 

Counsel for DBI PM and DBI also highlighted that Dearborn "spen[t] 

hundreds of thousands of dollars" in reliance on permits and use variance 

approvals he received. Further, counsel emphasized that plaintiff never timely 

appealed from "the zoning permit and the construction permits that were issued 

specifically for the spray booth." He noted such determinations by an 

administrative official were "appealable to the . . . Board within [twenty] days" 

and plaintiff was "way, way beyond that."

On February 10, 2022, the judge issued an oral opinion, dismissing count 

two of plaintiff's complaint. He explained that "[t]he action of [a] local Board 

is presumed to be valid" and it was plaintiff's burden to show the Board's actions 

in approving the second use variance were arbitrary, capricious, or 

unreasonable. Finding plaintiff failed to meet her burden, the judge stated: 

[a]lthough the 2020 [R]esolution mention[ed] the 

spray booth, the spray booth was not the basis for the 

second application . . . heard in 2020. . . . [P]laintiff's 

argument that the mere reference to the spray booth

during the 2020 hearing resets the clock for purposes of 

challenging the Board's 2019 [R]esolution of approval 

is contrary to the time provisions set forth in Rule 4:69-

6(a). 
19 A-3944-21

Accepting . . . [p]laintiff's arguments would 

essentially make the [forty-five] day window to 

commence an action in lieu of prerogative writs 

meaningless. 

 Moreover, in following the [forty-five]-day 

window for appeal to the Superior Court, applicants

receiving variance relief from land use boards are 

entitled to rely upon approvals that are not timely

appealed to the Superior Court and act upon those 

approvals by commencing construction, which is 

precisely what occurred in this matter . . . . 

. . . [F]ollowing the passage of the [forty-five] 

day[s] for appeal [from the first use variance], [DBI PM 

and DBI] relied upon the variance relief and engaged in 

significant expenditures for the variance involving the 

manufacture of custom cabinets, doors, windows and 

other millwork for use in custom homes. 

Plaintiff's arguments that [a] reference to the 

spray booth in the 2020 [R]esolution permits a second 

attempt to dispute the validity of the 2019 [R]esolution 

. . . remains contrary to New Jersey law and is untimely. 

Nevertheless, and to ensure a complete review for 

an appellate review that may follow, [p]laintiff's 

argument focuses on Paragraph Ten of [the] 2020 

[R]esolution[,] which provides, "[t]he Board is aware 

that the spray booth was a part of the operation that was 

previously approved by this Board." . . . 

Plaintiff argues that since the 2019 application 

and [R]esolution did not specifically identify the spray 

booth, which required a use variance that was not 

included in the notice, the Board . . . lacked jurisdiction 

to address the spray booth . . . . 
20 A-3944-21

Plaintiff has not challenged any other part of the 

relief provided by the 2020 approval and [R]esolution 

concerning the increased office space or site plan relief. 

Plaintiff maintains that since the spray booth 

was . . . never addressed and/or discussed during the

2019 application, any purported approval of the spray 

booth in the 2019 application and [R]esolution, and 

reliance therein in 2020, was arbitrary, capricious[,] 

and unreasonable, and not supported by the record, 

requiring the invalidation of the . . . second application 

in 2020. 

Plaintiff argues since DBI [PM] and [DBI] did 

not identify the spray booth in either application, notice 

was deficient [and] the Board lacked jurisdiction, 

which is fatal to any approval that may have been given 

by the Board. 

 . . . . 

 The notice requirements are clearly set forth in 

the Municipal Law Use Law [N.J.S.A. 40:55D-1 to -

136 (MLUL)]. N.J.S.A. 40:55D-12 requires that at 

least ten days prior to most zoning and land use 

proceedings, a developer must give public notice to

certain designated groups and persons of the matters to 

be considered in such proceedings. 

Notice shall be given to all . . . real property 

owners located within 200 feet in all directions of the 

property . . . . 

N.J.S.A. 40:55D-11 further mandates that such 

notice must contain certain specific information[,]

including the date, the time and the place of the hearing, 

[and] the nature of the matters to be considered . . . . 
21 A-3944-21

. . . . 

Proper public notice in accordance with the 

requirements of the [MLUL] is . . . a jurisdictional 

prerequisite for a zoning board's exercise of their

authority. 

 . . . . 

 The [Supreme] Court [has] confirmed the notice 

statute requires a commonsense description of the 

nature of the application such that the ordinary 

lay[person] can understand its potential impact upon 

[them]. 

 Consistent with this authority[,] . . . the court 

finds that . . . [DBI PM] and [DBI] were not required to

provide notice for the spray booth during the 2020 

application. 

 The 2020 application sought variance relief 

involving only . . . an increase in office space 

and . . . site plan relief. Since the spray booth was not 

an item for which variance relief was sought, no reason 

existed for [DBI PM and DBI] to include the spray 

booth in the 2020 notice under the [MLUL]. 

Rather, the issue of the spray booth was 

interjected into the hearing by the [p]laintiff due to her 

complaints to the Board, which the entire evidentiary 

record in this case confirmed the [p]laintiff had been 

aware of for several months and had been the subject of 

prior complaints to various officials associated with the 

Township of Wall. 

The Board allowing [p]laintiff's comments 

involving the already-installed spray booth did not 

deprive the Board of jurisdiction to address the matters 
22 A-3944-21

that were properly noticed and before the Board in 

its . . . resolution, [specifically,] the increase in second 

floor office space and site plan issues. 

Simply, there was no reason to include the spray 

booth in the notice under the [MLUL] because it was

not part of the 2020 application. Moreover, and as

confirmed in the prior order granting summary 

judgment[,] and in this opinion, the court has already 

determined that any attempt to challenge the 2019 

[R]esolution, including notice, is time-barred. 

Lastly and as previously stated, the role of this 

court when addressing an action in lieu of prerogative 

writs is intended to be a determination of the validity of 

the Board's action, not a substitution of the court's 

judgment therefore. . . . 

The proper scope of judicial review is not to 

suggest a decision that may be better than the one made 

by the Board but to determine whether the Board could 

reasonably have reached its decision on the record 

before it. . . . 

In Paragraph Ten of the resolution, the Board 

determined that the spray booth was part of the system 

that was approved during the 2019 application. 

The court agrees with [DBI PM and DBI] that the 

applicant is not required to . . . identify each . . . piece 

of equipment that would have been utilized in the 

manufacturing of custom kitchen cabinets, doors, 

windows[,] and other millwork for the use in custom 

homes. 

There is nothing arbitrary and capricious or 

unreasonable in the Board's determination that a spray 

booth was part of the operation that was previously 
23 A-3944-21

approved by the Board in 2019, and the court will not 

second-guess its judgment for that [of] the Board . . . . 

Accordingly, the court will not invalidate 

the . . . [2020] Resolution[] and order the removal of 

the spray booth. The request for relief in [c]ount [t]wo 

of the complaint is denied. 

. . . . 

So, the second count of the complaint is 

dismissed with prejudice. 

[(Emphasis added).] 

Judge McCarthy entered a conforming order on March 16, 2022. 

Months later, plaintiff moved to voluntarily dismiss the third count of her 

complaint, over the objection of DBI PM and DBI. The judge granted this 

request in an order dated July 27, 2022, rendering this matter ripe for appeal. 

II. 

 On appeal, plaintiff first argues Judge McCarthy erred in finding "the time 

provisions in Rule 4:69-6(a) precluded [her] from challenging the 2020 

variance." Second, she contends the judge erred in concluding the Board's 2020 

resolution was not arbitrary, capricious, or unreasonable. Third, plaintiff argues 

the judge mistakenly found the MLUL "did not require the notice of [Dearborn's] 

application to include the spray booth, because the spray booth is an integral 
24 A-3944-21

part of the nature of the use and a lay[person] would not know the nature of the 

application without knowing about the spray booth." 

Importantly, plaintiff emphasizes in her reply brief that she "challenges 

only the holding of the trial court on [c]ount [two of her complaint] . . . as it 

relates to the 2020 Zoning Board decision." Lest there be any doubt about the 

nature of her arguments, she clarifies the dismissal of "[c]ount [one] and [c]ount 

[three] are not challenged." Thus, we confine our discussion to whether Judge 

McCarthy properly dismissed the second count of plaintiff's complaint under the 

March 16, 2022 order. 

In that regard, we note plaintiff argues, as she did before Judge McCarthy, 

that "the 2020 [Resolution] expressly incorporated and relied upon the 2019 

record as a finding of fact in its resolution, which opened the door to analysis of 

the 2019 record." She also contends the Board "arbitrarily, capriciously and 

unreasonably relied on the 2019 record for the false finding . . . the spray booth 

[was] previously approved." Moreover, she argues Dearborn was required to 

give notice of his intent to use a spray booth when he applied for the second use 

variance, because it is an "integral part of the use" of the Property, and an 

ordinary layperson "would not know the nature of the application without 

knowing about the spray booth." These arguments fail. 
25 A-3944-21

III. 

We begin with a review of the principles that guide our analysis. "The 

MLUL is 'a comprehensive statute that allows municipalities to adopt ordinances 

to regulate land development in a manner which will promote the public health, 

safety, morals and general welfare using uniform and efficient procedures.'" 

Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of Twp. of Franklin, 233 N.J. 

546, 560 (2018) (quoting Rumson Ests., Inc. v. Mayor and Council of Fair 

Haven, 177 N.J. 338, 349 (2003)). Under the MLUL, the relevant municipal 

agency must hold a hearing on each application for development. N.J.S.A. 

40:55D-10(a). As Judge McCarthy aptly observed, notice of the hearing must 

"state the date, time and place of the hearing, the nature of the matters to be 

considered and, . . . an identification of the property proposed for development." 

N.J.S.A. 40:55D-11. 

 Proper notice is a jurisdictional prerequisite. Therefore, a failure to 

provide adequate notice may be deemed fatal to a planning board's approval. 

Perlmart of Lacey, Inc. v. Lacey Twp. Plan. Bd., 295 N.J. Super. 234, 236-38 

(App. Div. 1996). The purpose of providing notice 

is to ensure that members of the general public who

may be affected by the nature and character of the 
26 A-3944-21

proposed development are fairly apprised thereof so

that they may make an informed determination as to 

whether they should participate in the hearing or, at the 

least, look more closely at the plans and other 

documents on file. 

[Id. at 237-38.] 

See also Pond Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of 

Adjustment, 397 N.J. Super. 335, 351 (App. Div. 2008). Therefore, the notice 

must "accurately identify[] the type of use or activity proposed by the [land use] 

applicant in lay[person]'s terms, rather than the technical zoning term for that 

use." Pond Run Watershed Ass'n, 397 N.J. Super.at 352 (second alteration in 

original) (quoting Perlmart, 295 N.J. Super. at 239). However, because 

"[n]either the MLUL nor Perlmart requires the notice to be exhaustive," certain 

"non-disclosures . . . [in a notice] that do not involve a description of what the 

property would actually be used for" will not render the notice deficient. Id. at 

355. 

 "Our standard of review for the grant or denial of a variance is the same 

as that applied by the Law Division." Advance at Branchburg II, LLC v. Twp. 

of Branchburg Bd. of Adjustment, 433 N.J. Super. 247, 252 (App. Div. 2013). 

Thus, we recognize local boards of adjustment have "peculiar knowledge of 

local conditions, [and] must be allowed wide latitude in their delegated 
27 A-3944-21

discretion." Jock v. Zoning Bd. of Adjustment of Wall, 184 N.J. 562, 597 

(2005); see also Price v. Himeji, LLC, 214 N.J. 263, 284 (2013). 

A local board's decision "enjoy[s] a presumption of validity, and a court 

may not substitute its judgment for that of the board unless there has been a clear 

abuse of discretion." Price, 214 N.J. at 284. "The proper scope of judicial 

review is not to suggest a decision that may be better than the one made by the 

board, but to determine whether the board could reasonably have reached its 

decision on the record." Jock, 184 N.J. at 597 (citing Kramer v. Bd. of 

Adjustment of Sea Girt, 45 N.J. 268, 296 (1965)). However, "[a] board's 

decision regarding a question of law, such as whether it has jurisdiction over a 

matter, is subject to de novo review by the courts and thus is afforded no 

deference." Pond Run Watershed Ass'n, 397 N.J. Super. at 350. 

As Judge McCarthy recognized, "the action of a board will not be 

overturned unless it is found to be arbitrary and capricious or unreasonable, with 

the burden of proof placed on the plaintiff challenging the action." Dunbar, 233 

N.J. at 558 (alteration omitted) (quoting Grabowsky v. Twp. of Montclair, 221 

N.J. 536, 551 (2015)). "A 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 
28 A-3944-21

duly authorized municipal official." Ten Stary Dom P'ship v. Mauro, 216 N.J. 

16, 33 (2013) (citations omitted). "[W]hether [a board's] action was 

unreasonable, arbitrary or capricious must be decided upon the basis of what 

was before the . . . board and not on the basis of a trial de novo . . . before the 

Law Division." Antonelli v. Plan. Bd. of Waldwick, 79 N.J. Super. 433, 440-41 

(App. Div. 1963). 

Local boards of adjustment may grant use variances where the applicant 

proves "both the positive and negative criteria." Ten Stary, 216 N.J. at 30. 

"[T]he positive criteria include proof that the characteristics of the property 

present an opportunity to put the property more in conformity with development 

plans," whereas "the negative criteria include proof that the variance would not 

result in substantial detriment to the public good or substantially impair the 

purpose of the zone plan." Ibid. 

It also is well settled that under Rule 4:69-6(b), "[n]o action in lieu of 

prerogative writs shall be commenced . . . to review a determination of 

a . . . board of adjustment, or a resolution by the governing body . . . of a 

municipality . . . after [forty-five] days from the publication of a notice" about 

that determination or resolution. R. 4:69-6(b)(3). The purpose of the Rule "is 

designed to give an essential measure of repose to actions taken against public 
29 A-3944-21

bodies." Tri-State Ship Repair & Dry Dock Co., 349 N.J. Super. at 423 (quoting 

Wash. Twp. Zoning Bd. of Adjustment, 217 N.J. Super. at 225). 

Further, it is well established that N.J.S.A. 40:55D-70(a) empowers a 

zoning board of adjustment "to . . . [h]ear and decide appeals where it is alleged 

by the appellant that there is error in any . . . decision or refusal made 

by an administrative officer based on or made in the enforcement of the zoning 

ordinance." 

Appeals to the board of adjustment may be taken by any 

interested party affected by any decision of an

administrative officer of the municipality based on or

made in the enforcement of the zoning ordinance or

official map. Such appeal shall be taken within 

[twenty] days by filing a notice of appeal with the

officer from whom the appeal is taken specifying the

grounds of such appeal.[4] 

[N.J.S.A. 40:55D-72(a) (emphasis added).]

"An interested party clearly includes a neighbor who is affected 'by the grant of

a . . . permit that . . . violates the zoning ordinance.'" Harz, 234 N.J. at 322

4

 "'An appeal to the board of adjustment shall stay all proceedings in furtherance 

of the action in respect to which the decision appealed from was made unless' 

the administrative officer certifies that a stay would 'cause imminent peril to life 

or property.'" Harz v. Borough of Spring Lake, 234 N.J. 317, 322-23 (2018) 

(alteration omitted) (quoting N.J.S.A. 40:55D-75). 
30 A-3944-21

(quoting Cox et al., New Jersey Zoning & Land Use Administration § 26-1.1, at

559 (2018)). 

The twenty-day timeframe to appeal to a board under N.J.S.A. 40:55D72(a) "was intended to provide a degree of assurance that the recipient [of a 

permit] could rely on the decision of the administrative officer" and "designed 

to insulate the recipient of a . . . permit . . . from the threat of unrestrained future 

challenge." Sitkowski v. Zoning Bd. of Adjustment of Lavallette, 238 N.J. 

Super. 255, 260 (App. Div. 1990). Understandably, "because no provision 

requires the administrative officer to notify a nearby property owner about the

issuance of a zoning permit, the property owner may not know of the official 

action until well beyond the twenty-day limitations period." Harz, 234 N.J. at

322 (citation omitted). "In that circumstance, courts have taken the sensible 

position that 'the time for appeal begins to run from the date an interested person 

knew or should have known of the permit's issuance.'" Ibid. (quoting Trenkemp 

v. Twp. of Burlington, 170 N.J. Super. 251, 268 (Law Div. 1979)). 

Governed by these standards, and mindful that plaintiff does not challenge 

Judge McCarthy's dismissal of the first count of her complaint, whereby she

sought to invalidate the 2019 Resolution for lack of notice and Dearborn's 

"misrepresentation . . . of the intended use and lack of . . . proofs for a use
31 A-3944-21

variance," we have no reason to disturb Judge McCarthy's March 16, 2022 order. 

We reach this conclusion, in part, because, while we agree with plaintiff that 

"there was never any mention of the spray booth or exhaust stack in the 2019

record," this does not change the fact she failed to exercise her right under 

N.J.S.A. 40:55D-72(a) to timely appeal from the grant of the August 2019

zoning permit, which allowed Dearborn to operate the spray booth and exhaust 

system. 

The record reflects plaintiff was aware Dearborn was operating this 

equipment soon after he installed it, as evidenced by her testimony during the

May 20, and July 8, 2020 public hearings when she referred to the "horrific" 

fumes generated by these units. Yet, during those hearings, plaintiff expressed 

no specific objection to Dearborn's proposal to expand his office space and 

create a showroom for potential clients. Therefore, we agree with Judge

McCarthy's finding that "the issue of the spray booth was interjected into the 

hearing by . . . [p]laintiff" even though she was "aware of [the odor issue] for 

several months" and complained "to various officials associated with the

Township of Wall." 

Additionally, we concur with the judge's determination that plaintiff's 

remarks about "the already-installed spray booth did not deprive the Board of
32 A-3944-21

jurisdiction to address the matters that were properly noticed and before the

Board[, meaning] . . . the increase in second floor office space and site plan 

issues." Further, we are persuaded he properly found "there was no reason to

include the spray booth in the notice under the [MLUL] because it was not part 

of the 2020 application." 

Accordingly, because: (1) plaintiff failed to file her action in lieu of

prerogative writs within forty-five days of the adoption of the 2019 Resolution; 

(2) she does not appeal from the dismissal of count one of her complaint as time 

barred; (3) she never appealed to the Board to challenge the August 2019 permit 

authorizing Dearborn's operation of the spray booth and exhaust system; and; 

(4) plaintiff does not dispute that, after Dearborn received approval for the first 

use variance and the August 2019 permit, he spent over $500,000 in

improvements and upgrades to the Property, we are convinced Judge McCarthy 

properly dismissed count two of her complaint and upheld the Board's 2020

Resolution. 

Finally, we need only briefly address plaintiff's contention that it was error 

to dismiss the second count of the complaint, considering the 2020 Resolution 

stated "[t]he Board is aware that the spray booth was a part of the operation that 

was previously approved by this Board." Plaintiff urges us to interpret this 
33 A-3944-21

statement as proof the Board mistakenly found it approved the spray booth in its 

2019 Resolution. We are not persuaded. In fact, plaintiff's interpretation of this 

statement is belied by the record of the proceedings leading to the adoption of 

the 2020 Resolution. 

As discussed, during the May 2020 public hearing, after plaintiff voiced 

her concerns about the spray booth and exhaust system, multiple Board members 

stated they had no recollection of anyone mentioning a spray booth at the March 

6, 2019 hearing. The Board then adjourned the hearing to give Dearborn time 

to address the odor problems. After the Board reconvened in July 2020, it 

elicited additional testimony from Dearborn about his efforts to resolve the odor 

problem. Further, the Code Enforcement Officer told the Board that if it 

approved the second use variance application, it "might want to put a condition 

[in the Resolution] that if there [was] a continued problem[,] . . . [Dearborn] 

should come back before the Board to resolve th[e odor] issue." The Board 

appears to have heeded this suggestion because the 2020 Resolution expressly 

conditioned approval of the second use variance on Dearborn abiding by Wall 

Township's odor ordinance. Thus, the Board ensured plaintiff had a remedy to 

address any ongoing odor issues, while it also recognized these issues did not 

preclude it from approving the second use variance on its merits. 
34 A-3944-21

Accordingly, we are satisfied the Board's 2020 Resolution statement that 

"the spray booth was part of the operation . . . previously approved by this 

Board," when considered in the context of the full record of this matter, merely 

conveys the Board's awareness that: (1) it approved Dearborn's woodworking 

operation in 2019; (2) the spray booth and exhaust system were now part of that 

operation; and (3) any further odor issues caused by this equipment could be 

managed with the imposition of the conditions outlined in the balance of the 

Board's 2020 Resolution. 

In sum, we affirm the March 16, 2022 order, substantially for the reasons 

expressed by Judge McCarthy in his comprehensive opinion. But we also affirm 

on separate grounds5 because we are convinced that allowing plaintiff to 

challenge the administrative official's issuance of the August 2019 permit for 

the spray booth and exhaust system—without her ever having appealed from the 

permit decision and, instead, seeking relief through an action in lieu of 

prerogative writs—would improperly nullify the time constraint provided under 

N.J.S.A. 40:55D-72(a). Further, we recognize that if we overlooked the time 

restrictions outlined under N.J.S.A. 40:55D-72(a), thereby circumventing the 

5

 See State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011) (noting a 

reviewing court is free to affirm "on grounds different from those relied upon 

by the trial court"). 
35 A-3944-21

statute's purpose to promote the important policy of repose and prevent parties 

from resting on their rights, Dearborn would be left without a remedy, despite 

having expended over $500,000 in reliance on the 2019 Resolution and permit. 

To the extent we have not specifically addressed any of plaintiff's 

remaining arguments, we conclude they lack sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(1)(E). 

Affirmed.