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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3944

- 21 Thomas J. Hirsch argued the cause for respondents D BI Property Management, LLC, and Dearborn Builders, Inc. PER CURIAM In this zoning matter, plaintiff Debra Suzette Gri mm appeals from the March 16, 2022 order dismissing with prejudice coun t two of her complaint in lieu of prerogative writs against defendants Wall T ownship 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. Edwa rd Dearborn is the principal owner and officer of DBI, and the sole me mber of DBI PM. DBI has been in the business of constructing custom homes i n Monmouth and Ocean Counties since 2001. In November 2018, DBI purchased property at 2422 Ro ute 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 2 7, 2021 and July 27, 2022 orders, respectively dismissing with prejudice coun ts one and three of her prerogative writs complaint.3 A- 3944

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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] c onstructs." 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 busin ess on the Property because a prior use variance issued for the Property was "f or 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 app lication, 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 t he 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 relie d on that incomplete list to notify nearby property owners about the use varianc e application. On March 6, 2019, the Board conducted a public hearing on Dearborn's
ap plication. During Dearborn's testimony, his attorn ey asked him to describe4 A- 3944

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"the type of woodworking activity and the type of e quipment that [he] . . . propose[d] to have in the building" on t he Property. Dearborn replied:

It's a very standard woodworking shop, large joiner s, table saws, planers, things of that nature. The wo od comes in, it typically gets delivered rough. We

. . . use . . . maple, [and] mahogany . . .

. [I]t . . . sits on a shelf in a controlled environment and sta bilizes over time. . . . We're basically . . . pulling wood off the s helf, 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 type s of air filtration equipment that [he] use[d] to ensure that none of t he 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 drop s 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 "ha d any complaints or5 A- 3944

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problems with respect to any sort of odor." Dearbo rn responded, "no, never.
No." Dearborn 's engineer, Jeffrey Carr, also testified at the Marc h 6 hearing. He stated Dearborn's proposed use did not include s elling cabinets "for retail. " Instead, the cabinets would be "custom built." In describ ing "the positive criteria and the particular suitability of this sit e for . . . Dearborn's use," Carr stated, "[w]e are effectively doing no improvements to the site. We're not expanding it." Additionally, Carr testified Dearbo rn's proposed use of the property was "not something that w[ould] be a chang e in the neighborhood." When Dearborn's attorney asked Carr if "the Board c ould grant this use variance without substantially, detrimentally impac ting 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 negativ e impact on the surrounding properties or the surroun ding 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, su bject to various conditions, includ ing: a restriction on Dearborn 's use of off-site parking; a prohibition on "outdoor storage or fabrication," an d the need for him to "return6 A- 3944

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to th[e] Board" to "obtain[] appropriate use varian ce and approval" for "[a]ny expansion of the existing building." On March 20, 2019, the Board published Resolution 01- 2019 (2019 Resolution), memorializ ing its approval of the use variance, as well as "the grant of bulk variance re lief . . . and the waiver for preliminary and final site plan approval," subject to Dearborn's compliance

" with all the . . . conditions which [were] made a contin uing part of th[e] resolution of approval." The resolution included the Board's approval for th e Property to be used "as an office and millwork and trim woodwork production site for items intended to be incorporated in const ruction conducted off[-]site." The 2019 Resolution also referenced Dearborn's test imony from the March 6 hearing, noting he "propose[d] to use a portion of the existing build ing [at the Property] as office space and the remainder of the building . . . for the fabrication and millwork of custom cabinets, window s and doors to be incorporated in homes which [DBI] constructs off si te" and to meet with "prospective customers." Additionally, t he resolution also referred to his testimony that, "[a]ll of the machinery utilized in connection with woodworking [would be] connected to dust collector systems[,] w hich ma[de] the removal of dust from the premises extremely efficient and safe ."7 A- 3944

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Further, the 2019 Resolution referenced Carr's test imony from the March 6 hearing , stating he opined that "because of the self[-]conta ined 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 resident ial 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 inst all 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 z oning 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, s he contacted him about her observations. Dearborn advised her he would do what he could to resolve any odor i ssues.8 A- 3944

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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 an y 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 a nd 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 exh aust pipe on the Property. Plaintiff received notice of the second use varianc e application and appeared at the May 20, 2020 public hearing to addr ess it. When t he 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 nex t 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

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Th e Board invited Dearborn to respond to plaintiff's inquiry. He testified he intended "to move the exhaust pipe for the spray b ooth . . . 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 lo ng 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 t hink they're painting twice a day now, . . . so if I'm outside w hen 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 . . . p ush the fumes out to the Route 34 side of the building" and plaintiff would no lon ger smell the odor. The Board's attorney remarked, "there must be some type of stan dard here that [DBI PM and DBI] have to comply with," prompt ing the following exchange:

BOARD MEMBER McBARRON: I don't remember this coming up in the first [use variance] applicat ion.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" plain tiff 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 reduc ed 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 happeni ng was the actual paint was being sucked up and exhaus ted 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 spra y 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 remedie s. But for now[,] I think it's a pretty good solution . . . we came up with. Plaintiff also testified at the July 8 hearing. S he stat ed :

[M]y major issue has been the smell and I am worrie d 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 lik e 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. . . . Y ou 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 frequentl y the spray booth operated in a "typical week[,] generat ing 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

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Before the Board voted on the second use variance a pplication, 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 varia nce application at the conclusion of the July 8 hearing, subject to va rious conditions of approval placed on the record. On October 7, 2020, the Board issued Resolution 6- 2020 (2020 Resolution), formally approv ing 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 Resolutio n expressly stated:

the Board expects that [Dearborn] shall comply with all pertinent [T]ownship ordinances or county regulatio ns with regard to the emission or discharge of odors f rom this facility. The Board is aware that the spray b ooth 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 be13 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 s a fe containment. The . . . justification for grant of use variance relief set forth in the Board's prior reso lution is again affirmed. With the resolution of the odor problem emanating from the spray booth, the benefits of thi s application as a whole advance the purposes of the zoning including the public welfare. [(Emphasis added).] In November 2020, plaintiff filed a three-count com plaint in lieu of prerogative writs against the Board, DBI PM, and DB I. 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 w ould be entirely self-contained within the structure." In count two, plaintiff ass erted that when Dearborn applied for the second use variance, he "failed to . . . meet the substantial requirements to justify a use variance" and "contin ued to misrepresent the use, and the extent of the use and discharge of the spra y booth . . . and the impact of the noxious fumes being discharged into the air fro m the site." Finally, plaintiff alleged in count three that "[t]he fumes . . . emit ted from the [Property] are noxious and offensive in smell, are believed to possibly create or aggravate14 A- 3944

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health . . . problems[,] . . . and generally create a nuisance . . . to nearby residents, including . . . [p]laintiff ." Based on these allegations , plaintiff asked for a judgment: (1) "[i]nvalidat ing the March 20, 2019 Resolution "; (2) "invalidating the . . . 2020 [Resolution] and requiring [DBI PM and DBI] to remo ve any and all expansions of the site"; (3) enjoining DBI PM and DBI from "al l 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 summa ry judgment to dismiss the first count of the complaint , alleging it was time barred under Rule 4:69 -6. 2 I n the statement of uncontested material facts support ing the motion , counsel for DBI PM and DBI represented that Dearborn inc urred over $532,000 in construction and improvement costs after the Boa rd 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 ac crual of the right to the review, hearing or relief claimed, except as provid ed 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 Repai r & Dry Dock Co. v. City of Perth Amboy, 349 N.J. Super. 418, 423 (App. Div. 2002) (quoting Wash. Tw p. Zoning Bd. of

Adjustment v. Wash. Twp. Plan. Bd., 217 N.J. Super. 215, 225 (App. Div. 1987)).15 A- 3944

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variance. Plaintiff opposed the motion and cross-m oved for partial summary judgment on the first and third counts of her compl aint. Judge Owen C. McCarthy heard argument on the cross- applications on August 27, 2021. Du ring the hearing, plaintiff's counsel opposed dismi ssal of the first count of the complaint and claimed the judge should extend the ti me limits under Rule 4:69 -6 3 because "[i]t wasn't until [Dearborn's] second application in . . . 2020 that [plaintiff] understo od . . . 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 prov ided in . . . [Rule 4:69 -6(a)] where it is manifest that the interest of ju stice so requires." We have broadly interpreted the ability of a trial co urt to enlarge the time period for filing a complaint in lieu of prero gative 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, na mely cases "involving[:] (1) important and novel constitutional questions; (2) i nformal or [e]x parte determinations of legal questions by administrative officials; and (3) important public rather than private interests which require adjud ication 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, 5 83

- 84 (2011). Our Supreme Court also has instructed that even when " the right to relief has accrued, the interests of justice requir e, at least, that the litigant be permitted . . . to exhaust all administrative remed ies before commencing an in lieu action." Schack v. Trimble, 28 N.J. 40, 49 (1 958).16 A- 3944

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[forty-five]-day period." Accordingly, he entered an order , granting DBI PM and DBI's partial summary judgment motion and dismi ss ing the first count of plaintiff's complaint. He also signed a companion order on August 27, den ying plaintiff's cross-motion. In January 2022, Judge McCarthy heard argument reg arding plaintiff's request under count two of her complaint to invalid ate the 2020 Resolution

. Plaintiff's counsel contended this relief was appro priate 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 20 19 Resolu tion . 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 mentio ned once, not even by word or by concept [] in 2019." Additionally, counsel contended "it would appear . . . there was an attempt to hide [the spra y b ooth] . . . . because in 2019 when . . . Dearborn was asked [at the March 6 publi c hearing] to explain his [woodworking] process[,] . . . he didn't indicate a nything 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] th at," and "the owner of the business didn't mention it when he was asked to exp lain 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 discussi on it want[ed] . . . about the . . . ongoing operation of the . . . business." Additionally, counsel stated the Board took plaintiff's concer ns 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 al so argued the Board did not perceive the odor issue "as something that . . . pr evented [it] from granting the18 A- 3944

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[second] use variance, but simply as an operational aspect that [it] need[ed] to take control of and make sure it[ was] operating co rrectly." Counsel for DBI PM and DBI also highlighted that De arborn "spen[t] hundreds of thousands of dollars" in reliance on pe rmits and use variance approvals he received. Further, counsel emphasized that plaintiff never timely appealed from "the zoning permit and the constructi on 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 bur den 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 purpos es of challenging the Board's 2019 [R]esolution of approv al is contrary to the time provisions set forth in Rul e 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], [D BI PM and DBI] relied upon the variance relief and engage d 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]esol ution . . . remains contrary to New Jersey law and is unt imely. 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 awa re that the spray booth was a part of the operation th at 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 juri sdiction 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]esoluti on concerning the increased office space or site plan relief. Plaintiff maintains that since the spray booth wa s . . . never addressed and/or discussed during the 2019 application, any purported approval of the spr ay 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 appl ication 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 g iven 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 matter s 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 h earing, [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 jurisdictiona l 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 upo n [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 rea son 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] la intiff due to her complaints to the Board, which the entire evidentia ry record in this case confirmed the [p]laintiff had b een aware of for several months and had been the subjec t of prior complaints to various officials associated wi th 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 ma tters22 A- 3944

- 21 that were properly noticed and before the Board in its . . . resolution, [s pecifically,] 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 alre ady 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 prerogat ive writs is intended to be a determination of the vali dity 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 cou ld 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 sys tem 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 sp ray booth was part of the operation that was previousl y23 A- 3944

- 21 approved by the Board in 2019, and the court will n ot 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. T he 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 e rred in finding "the time provisions in R ule 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 requir e the notice of [Dearborn's] application to include the spray booth, because the spray booth is an integral24 A- 3944

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part of the nature of the use and a lay[person] wou ld not know the nature of the application without knowing about the spray booth." Importantly, plaintiff emphasizes in her reply brie f 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 dismissa l 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 pla intiff's complaint under the March 16, 2022 order. In that regard, we note plaintiff argues, as she di d 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, capriciou sly and unreasonably relied on the 2019 record for the fals e 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 applie d for the second use variance , because it is an "integral part of the use" of the Property, a nd an ordinary layperson "would not know the nature of th e 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. "T he MLUL is 'a comprehensive statute that allows munici palities to adopt ordinances to regulate land development in a manner which will promote the public health, safety, morals and general welfare using uniform an d efficient procedures.'" Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of T wp. of Franklin, 233 N.J. 546, 560 (2018) (quoting Rumson Ests., Inc. v. Mayor an d 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 hea ring must "state the date, time and place of the hearing, the nature of the matters to be considered and, . . . an identification of the prop erty proposed for development." N.J.S.A. 40:55D- 11

. Proper notice is a jurisdictional prerequisite. T herefore, a failure to provide adequate notice may be deemed fatal to a pl anning board's approval. Perlmart of Lacey, Inc. v. Lacey Twp. Plan. Bd., 29 5 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 the26 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 .] S ee also Pond Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of Adjustment, 397 N.J. Super. 335, 351 (App. Div. 200 8). Therefore, the notice must "accurately identify [] the type of use or activity proposed by the [land u se] applicant in lay[person]'s terms, rather than the t echnical 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 notic e to be exhaustive," certain

" non -disclosures . . . [in a notice] that do not involv e a description of what the property would actually be used for" will not rende r 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 B ranchburg II, LLC v. Twp. of Branchburg Bd. of Adjustment, 433 N.J. Super. 24 7, 252 (App. Div. 2013). Thus, we recognize local boards of adjustment have "peculiar knowledge of local conditions, [and] must be allowed wide latitu de in their delegated27 A- 3944

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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 (2 013)

. A local board's decision "enjoy[s] a presumption of validity, and a court may not substitute its judgment for that of the boa rd 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 bet ter than the one made by the board, but to determine whether the board could rea sonably have reached its decision on the record." Jock, 184 N.J. at 597 (ci ting 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 wheth er 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 boar d will not be overturned unless it is found to be arbitrary and c apricious or unreasonable, with the burden of proof placed on the plaintiff challeng ing 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 municip al governing body or another28 A- 3944

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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 decid ed 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 R ule 4:69

- 6( b), "[n]o action in lieu of prerogative writs shall be commenced . . . to revie w 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 public29 A- 3944

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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 whe re 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 a ll proceedings in furtherance of the action in respect to which the decision appe aled from was made unless' the administrative officer certifies that a stay wo uld '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

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( quoting Cox et al ., N ew 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. 40:55D

72(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, where by 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 use31 A- 3944

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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 fail ed 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 o perating 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 th ese 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 official s 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 of32 A- 3944

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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 c ontention that it was error to dismiss the second count of the complaint, consi dering the 2020 Resolution stated "[t]he Board is aware that the spray booth was a pa rt of the operation that was previously approved by this Board." Plaintiff urges us to interpret this33 A- 3944

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statement as proof the Board mistakenly found it ap proved 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 proceeding s leading to the adoption of the 2020 Resolution.
As discussed, during the May 2020 public hearing, afte r plaintiff voiced her concerns about the spray booth and exhaust syst em, multiple Board members stated they had no recollection of any one mentioning a spray booth at the March 6, 2019 hearing. The Board then adjourned the hearing to give Dearbo rn time to address the odor problems. After the Board reconvened in July 2020 , it elicited additional testimony from Dearborn about h is efforts to resolve the odor problem. Further, the Code Enforcement Officer tol d 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 o dor] 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 meri ts.34 A- 3944

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Accordingly, we are satisfied the Board's 2020 Reso lution statement that "the spray booth was part of the operation . . . pr eviously 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 approve d 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 b y this equipment could be managed with the imposition of the conditions outli ned in the balance of the Board's 2020 Resolution. In sum, we affirm the March 16, 2022 order, substan tially for the reasons expressed by Judge McCarthy in his comprehensive op inion. But we also affirm on separate grounds 5 because we are convinced that allow ing plaintiff to challenge the administrative official's issuance of the August 2 019 permit for the spray booth and exhaust system

— without her ever having appealed from the permit decision and, instead, seeking relief throug h 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 tim e restrictions outlined under N.J.S.A. 40:55D-72(a), thereby circumvent ing 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 diffe rent from those relied upon by the trial court").35 A- 3944

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statute's purpose to promote the important policy o f 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 20 19 Resolution and permit. To the extent we have not specifically addressed an y 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.