NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2075-14T2

JAI SAI RAM, LLC, a limited 

liability company of the State

of New Jersey, and SUNIL DHIR,

Plaintiffs-Appellants,

v.

THE PLANNING/ZONING BOARD OF 

THE BOROUGH OF SOUTH TOMS RIVER 

and WAWA, INC.,

Defendants-Respondents.

_______________________________________

Argued March 8, 2016 - Decided

Before Judges Reisner, Hoffman and Leone.

On appeal from the Superior Court of New 

Jersey, Law Division, Ocean County, Docket 

No. L-1005-14.

Edward F. Liston, Jr., argued the cause for 

appellants.

Sebastian Ferrantell argued the cause for 

respondent Planning/Zoning Board of South 

Toms River (Montenegro, Thompson, Montenegro 

& Genz, attorneys; Mr. Ferrantell, of 

counsel and on the brief).

Stephen R. Nehmad argued the cause for 

respondent Wawa, Inc. (Nehmad Perillo & 

Davis, attorneys; Mr. Nehmad and Michael R. 

Peacock, on the brief).

APPROVED FOR PUBLICATION

July 27, 2016

APPELLATE DIVISION

July 27, 2016
2 A-2075-14T2

The opinion of the court was delivered by

REISNER, P.J.A.D.

Plaintiffs Jai Sai Ram, LLC and Sunil Dhir appeal from a 

December 3, 2014 order dismissing their complaint in lieu of 

prerogative writs against defendants, the Planning/Zoning Board 

of the Borough of South Toms River1 (Board) and Wawa, Inc.

(Wawa). The primary issue presented by this appeal is whether 

the time of application rule, set forth in N.J.S.A. 40:55D-10.5, 

applies where, after a use variance application is filed, 

seeking relief under the existing zoning ordinance, the 

municipality amends the ordinance to specifically permit the use 

which is the subject of the application. Construing the statute 

in light of the purpose for which the Legislature adopted it, we 

conclude that the rule does not apply in that situation, and the 

developer is entitled to the benefit of the ordinance as 

amended. 

I

In this case, Wawa applied for a use variance to construct 

a combined convenience store and gas station on a piece of 

property that was located partially in a highway development 

zone and partly in a residential zone. At the time the 

 

1 South Toms River has a combined planning and zoning board. See

N.J.S.A. 40:55D-25(c). 
3 A-2075-14T2

application was filed, the proposed use was not permitted in 

either zone. It also was not clear whether the Board would 

consider a combined gas station/convenience store to constitute 

two principal uses on a single lot, which was also prohibited 

under the zoning ordinance. 

The Wawa site was located in the Pinelands, see N.J.S.A.

13:18A-11, but in a section designated as a Pinelands Regional 

Growth Area, where commercial development is encouraged "in 

order to accommodate regional growth influences in an orderly 

way." N.J.S.A. 13:18A-9; see also N.J.A.C. 7:50-5.13(g)

(defining regional growth areas); N.J.A.C. 7:50-5.28 (providing 

minimum standards for development in regional growth areas). 

After Wawa filed its application, the municipal ordinance was 

amended in 2013 to make the entire area surrounding the project 

a special economic development (SED) zone, instead of a partly 

highway commercial and partly residential zone.2 However, the 

 

2 Because the site was located in the Pinelands, and the 

Pinelands Commission (Commission) had not yet certified the 

municipal master plan and zoning ordinance as being in 

compliance with the Pinelands Comprehensive Master Plan (CMP), 

the Commission's regulations required Wawa to obtain the 

Commission's preliminary approval (known as a "Certificate of 

Completeness") before proceeding with its application to the 

Board. N.J.A.C. 7:50-4.15; N.J.A.C. 7:50-4.17. While Wawa's 

land use application was pending before the Board, the 

Commission certified the local master plan and zoning, including 

the creation of the SED zone. Despite the certification, the 

Board's subsequent resolution approving Wawa's application still 

(continued)
4 A-2075-14T2

SED zone did not specifically provide for a combined gas 

station/convenience store use, and the 2013 zoning amendment did 

not change the ordinance's prohibition against siting two 

principal uses on a single lot. 

On January 22, 2014, the Board approved Wawa's application. 

The approval was memorialized in a fifty-page Resolution dated 

February 9, 2014.3 Notably, in its resolution, the Board found 

Wawa's expert witnesses credible on all pertinent issues, and 

found plaintiffs' experts not credible. The Board determined 

that the combined gas station/convenience store constituted one 

principal use of the property. The Board also approved Wawa's 

application for preliminary and final major site plan approval 

and several bulk variances, and granted a use variance for this 

particular commercial use. On April 8, 2014, the Executive 

 

(continued)

needed to be reviewed by the Commission's Executive Director to

ensure that it conformed to the requirements of the CMP. See

N.J.S.A. 13:18A-10(c); N.J.A.C. 7:50-4.22 (review of final local 

decision in uncertified municipality); N.J.A.C. 7:50-4.40(a) 

(review of final local decision in certified municipality). The 

Executive Director's final approval letter is known as a "no 

call up" letter, because it signals that the Board's decision 

need not be called up for further review by the Commission. See

N.J.A.C. 7:50-4.40(a), -4.40(d).

3 On April 15, 2014, the Board approved Wawa's application for a 

minor subdivision of the property. Plaintiffs did not challenge 

the April 15, 2014 decision in their complaint in lieu of 

prerogative writs, which was filed on April 9, 2014. 

 
5 A-2075-14T2

Director of the Pinelands Commission issued a final approval 

letter, determining that Wawa's proposed development and the 

Board's approval were consistent with the Pinelands 

Comprehensive Master Plan.4

Plaintiffs did not appeal to this court from the 

Commission's decision. However, plaintiffs filed an action in 

lieu of prerogative writs in the Law Division, challenging the 

Board's decision. The trial court affirmed the Board's 

decision, for reasons stated in a thirty-two-page written 

opinion. 

Plaintiffs appealed from the Law Division's final order. 

While this appeal was pending, the municipality amended its 

zoning ordinance to specifically designate "single use retail 

sales & gasoline filling stations operated by a single business 

entity . . . not part of a planned development" as a permitted 

principal use in the SED zone. South Toms River, N.J., 

Ordinance 2-15 (January 30, 2015). The Executive Director of 

the Pinelands Commission approved that amended ordinance on 

 

4 The Pinelands Commission regulations provide, in pertinent 

part: "Unless expressly permitted in a certified municipal land 

use ordinance, no more than one principal use shall be located 

on one lot." N.J.A.C. 7:50-5.1(c). In approving the Board's 

resolution on April 8, 2014, before the municipality amended its 

zoning ordinance to specifically allow combined gas 

station/convenience stores in the zone, the Commission signaled 

that it considered a combined gas station/convenience store to 

be one principal use. 
6 A-2075-14T2

April 16, 2015. See N.J.A.C. 7:50-3.45. 

For the reasons set forth below, the applicant is entitled 

to the benefit of the 2015 amendment and, accordingly, 

plaintiffs' appeal challenging the use variance is moot. 

II

The time of application rule applies to municipal 

development regulations, and provides as follows:

Notwithstanding any provision of law to the 

contrary, those development regulations 

which are in effect on the date of 

submission of an application for development 

shall govern the review of that application 

for development and any decision made with 

regard to that application for development. 

Any provisions of an ordinance, except those 

relating to health and public safety, that 

are adopted subsequent to the date of 

submission of an application for 

development, shall not be applicable to that 

application for development.

[N.J.S.A. 40:55D-10.5.]

Prior to its adoption, our courts applied the "time of 

decision" rule, under which a decision concerning a land use 

application would be based on the municipal ordinance as it 

existed at the time the application or appeal was being decided. 

Maragliano v. Land Use Bd. of Wantage, 403 N.J. Super. 80, 83 

(App. Div. 2008), certif. denied, 197 N.J. 476 (2009). The time 

of decision rule allowed municipalities to block proposed 

developments by changing the applicable zoning ordinances while 
7 A-2075-14T2

the development applications were being considered. See

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 

378-79 (1995). 

Thus, "[i]n the area of land use, a 

municipality may change its regulating 

ordinances after an application has been 

filed and even after a building permit has 

been issued and, as long as the applicant 

has not substantially relied upon the 

issuance of the building permit, it is 

subject to the amended ordinance."

[Maragliano, supra, 403 N.J. Super. at 83 

(citation omitted).]

The clear purpose of N.J.S.A. 40:55D-10.5, adopted as L.

2010, c. 9, § 1, was to assist developers and property owners by 

obviating the time of decision rule. See Sponsor's Statement to 

A. 437 (2010) (stating the bill's intent to "override . . . the 

'time of decision rule.'"); S. Cmty. & Urban Affairs Comm.,

Statement to S. 82 (2010). The Legislature was concerned about

situations in which a developer would spend time and money 

pursuing an application, only to have a municipality change the 

zoning to the developer's detriment while the application was 

pending. The Sponsor's Statement reflects the statute's purpose:

Under current law, applicants are 

subject to changes to municipal ordinances 

that are made after the application has been 

filed, and even after a building permit has 

been issued . . . . Application of this rule 

sometimes causes inequitable results, such 

as when an applicant has expended 

considerable amounts of money for 
8 A-2075-14T2

professional services and documentation that 

become unusable after the ordinance has been 

amended. While effectively prohibiting 

municipalities from responding to an 

application for development by changing the 

law to frustrate that application, the bill 

recognizes that ordinance changes necessary 

for the protection of health and public 

safety would apply to pending applications.

[Sponsor's Statement to A. 437 (2010).]

The Governor's Message, issued upon signing the bill, 

likewise explained its goals:

The legislation does not guarantee approval 

of a land-use application, but instead 

allows for the application process to move 

forward without the unnecessary hurdle of 

constantly changing requirements while the 

application is pending.

"New Jersey's businesses and entrepreneurs -

the job creators of our state - invest 

considerable amounts of financial and human 

resources in navigating a vast landscape of 

rules and regulations at the state and local 

level," said Governor Christie. "Prior to 

the signing of this legislation, the system 

allowed for those rules to be changed in the 

middle of the process, even after an 

application has been submitted. This 

legislation makes common sense changes to 

improve the application process and move New 

Jersey in the right direction of providing a 

friendlier environment for job creation, 

while keeping safeguards for public health 

and safety in place."

Currently, regulations do not "lock-in" 

until preliminary approval is granted for an 

application, allowing municipalities to 

change the requirement of an application 

after its initial submission, resulting in a 

business that is investing in New Jersey 
9 A-2075-14T2

having to start the costly, time-intensive 

application process over, or abandoning the 

project altogether.

[Governor's Message to S. 82 (May 5, 2010).]

In construing legislation, our "overriding goal is to give 

effect to the Legislature's intent." State v. D.A., 191 N.J.

158, 164 (2007) (citing DiProspero v. Penn, 183 N.J. 477, 492

(2005)). Ordinarily, "the best indicator of that intent is the 

plain language" of the statute. State v. Gandhi, 201 N.J. 161, 

176 (2010) (citation omitted). However, we do not follow that 

rule when to do so would produce an absurd result, at odds with 

the clear purpose of the legislation. See Perelli v. 

Pastorelle, 206 N.J. 193, 200-01 (2011); Marshall v. Klebanov, 

188 N.J. 23, 36-37 (2006).

[W]e also have stressed that "where a 

literal interpretation would create a 

manifestly absurd result, contrary to public 

policy, the spirit of the law should 

control." Thus, when a "'literal 

interpretation of individual statutory terms 

or provisions'" would lead to results 

"'inconsistent with the overall purpose of 

the statute,'" that interpretation should be 

rejected.

[Hubbard v. Reed, 168 N.J. 387, 392-93

(2001) (citations omitted); see also Sussex 

Commons Assocs., LLC v. Rutgers, 210 N.J.

531, 540-41 (2012).]

In this case, while the literal terms of the statute could 

be construed to prevent a favorable land use amendment from 
10 A-2075-14T2

applying to a pending application, that reading would be 

completely contrary to its purpose. Accordingly, we conclude 

that the statute does not apply where the local zoning is 

amended to specifically permit the use which is the subject of a 

variance application. In that situation, the variance is no 

longer necessary, and it would be absurd, as well as contrary to 

the Legislature's purpose, to hold the applicant to the less 

favorable standards of the pre-existing ordinance. 

Likewise, where, as here, there is a pending appeal 

challenging the grant of the variance, the appeal becomes moot 

by virtue of the amendment specifically permitting the use. 

The dispute is moot because, even if we were to decide the 

appeal in appellants' favor, the applicant could proceed with 

the project without the variance. See In re Application for a 

Retail Firearms Dealer's License Renewal, 445 N.J. Super. 80, 97

(App. Div. 2016) (citing Greenfield v. N.J. Dep't of Corr., 382 

N.J. Super. 254, 257-58 (App. Div. 2006)).

5

Finally, because the appeal is moot for the reasons 

discussed above, this case does not require us to decide how or 

whether the Pinelands Preservation Act may affect the 

implementation of N.J.S.A. 40:55D-10.5 where a Pinelands 

 

5 For completeness, we note that if the appeal were not moot, we 

would affirm the grant of the use variance for the reasons 

stated by the trial judge in his comprehensive opinion. 
11 A-2075-14T2

municipality's zoning scheme is uncertified at the time a land 

use application is filed but is thereafter certified by the 

Commission after being amended by the municipality.

Here, plaintiffs argue that, once the 2013 zoning amendment 

was certified by the Commission, the Board was bound to apply 

the ordinance as amended. As the trial judge noted, in this 

case, the applicant's evidence at the Board hearing addressed 

both the uncertified and certified ordinances. The Board's 

resolution did likewise, although the resolution stated that the 

Board rendered its decision under the uncertified ordinance, 

applying the time of application rule. The Pinelands Commission 

approved the Board's resolution, finding that the approvals 

granted were consistent with the CMP. As previously noted, 

plaintiffs have not appealed from the Commission's April 8, 2014 

decision. 

Further, as the Board's resolution noted, the certified SED 

zoning ordinance was more favorable to the applicant than the 

existing uncertified ordinance, and the application would have 

warranted approval under either enactment. Indeed, plaintiffs 

have not cited any differences between the uncertified ordinance 

and the certified ordinance which would have negatively affected 

Wawa's application. Thus, this case does not present a 

situation where the certified ordinance is more restrictive than 
12 A-2075-14T2

the previous, uncertified ordinance and, thus, where the time of 

application rule would make a difference to the Board's 

decision. Lastly, as previously noted, the use variance issue 

is now moot by virtue of the municipality's adoption, and the 

Commission's approval, of the 2015 amended ordinance 

specifically permitting this use in the zone.

III

Plaintiffs' remaining appellate arguments do not warrant 

extended discussion. Plaintiffs contend that, as the lessee of 

the property to be developed, Wawa lacked standing to pursue its 

entire land use application, despite the landowner's written 

consent. They also argue that the mayor and two borough council 

members, all of whom were also Board members, improperly 

participated in the Board proceedings, although they were 

statutorily precluded from doing so because the application 

involved a use variance. See N.J.S.A. 40:55D-25(c)(1). The 

latter argument is not supported by the record, and we reject 

both arguments for the reasons stated by the trial judge in his 

comprehensive opinion. 

The judge also properly rejected plaintiffs' argument that 

the proposed project constituted an "automobile service station" 

under the local zoning ordinance and therefore required a 1500-

foot set-back from nearby churches and schools. Plaintiffs' 
13 A-2075-14T2

additional arguments were likewise thoroughly and correctly 

addressed and rejected in the trial judge's opinion. Those 

contentions are without sufficient merit to warrant further 

discussion here. R. 2:11-3(e)(1)(E).

Affirmed.