                                NOT FOR PUBLICATION WITHOUT THE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.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1388-17T1

A-Z VENUE MANAGEMENT, LLC,
and ZACHARY LUBCHANSKY,

          Plaintiffs-Respondents,

v.

ZONING BOARD OF ADJUSTMENT
OF THE TOWNSHIP OF WEST
AMWELL and THE TOWNSHIP
OF WEST AMWELL,

     Defendants-Appellants.
_________________________________

                    Argued January 8, 2019 – Decided July 15, 2019

                    Before Judges Accurso and Vernoia.

                    On appeal from the Superior Court of New Jersey,
                    Law Division, Hunterdon County, Docket No. L-
                    0060-17.

                    John R. Lanza and Stewart P. Palilonis argued the
                    cause for appellants (Lanza & Lanza, LLP, attorneys
                    for appellant Township of West Amwell; Stewart P.
                    Palilonis, attorney for appellant Zoning Board of
                    Adjustment of the Township of West Amwell; John R.
                    Lanza and Stewart P. Palilonis, on the joint briefs).
            Arnold C. Lakind argued the cause for respondents
            (Szaferman Lakind Blumstein & Blader PC, attorneys;
            Arnold C. Lakind, of counsel and on the brief).

PER CURIAM

      In this zoning dispute, defendants Zoning Board of Adjustment of the

Township of West Amwell (the Board) and the Township of West Amwell (the

Township) appeal from the Law Division's October 20, 2017 order reversing

the Board's denial of plaintiffs A-Z Venue Management, LLC, and Zachary

Lubchansky's conditional use application. We affirm.

                                       I.

      At issue in this case is whether plaintiffs' proposed use of a property

satisfies certain criteria embodied in two municipal ordinances. Plaintiffs are

the contract purchasers of Brook Mill Farm (the property). 1 The property is

approximately 13.8 acres and contains several buildings, including a main

estate house, a "cottage house," a barn, a garage, a tennis court, a gazebo, and

an in-ground pool. The Alexauken Creek, a stream protected by the New

Jersey Department of Environmental Protection, bisects the property.         The

property is situated in an RR-5 (Residential Rural) Zone.


1
   Lubchansky testified before the Board that the contract to purchase the
property is contingent on the approval of the conditional use.


                                                                       A-1388-17T1
                                      2
      The property's seller rented it semi-annually for weddings and family

reunions, and plaintiffs intend to continue to use the property as a reception

venue. Plaintiffs contacted the Township in March 2015 to confirm that this

proposed use was acceptable. Plaintiffs received no written response from the

Township, but conversations with a Township official left plaintiffs with the

impression that their proposed use was permitted. Plaintiffs thereafter began

to host receptions on the property.

      In April 2016, plaintiffs received a letter from the Township stating that

their operation of a "'Bed and Breakfast' or 'Assembly' use" was never

approved by the Board, and that without such approval, plaintiffs' use violated

the municipal code. The letter stated that plaintiffs could seek a conditional

use approval from the Board to continue their use of the property as a

reception venue.

      Plaintiffs sought approval for their proposed use as an "assembly use," a

conditional use for property in RR-5 zones.        "Assembly" is defined by

Township of West Amwell, N.J., Land Development Ordinance 109-4 (Nov.

18, 2015) (hereinafter Ordinance 109-4) as:

            A use which is a permanent facility, building,
            structure, or installation which is providing for civic,
            educational, political, religious or social assemblage
            purposes. This term shall include nonprofit or for-

                                                                       A-1388-17T1
                                      3
               profit facilities and shall include, but may not be
               limited to, houses of worship, banquet facilities,
               lodges, fraternal organizations, civic organizations and
               funeral homes.

Further, Township of West Amwell Land Development Ordinance 109-104

(Nov. 18, 2015) (hereinafter Ordinance 109-104) mandates that "[p]laces of

assembly . . . shall adhere to the following" conditional use requirements:

               A. The minimum lot size shall be five acres, at least
               four of which shall be buildable.

               B. Principal or accessory buildings shall be located no
               less than [seventy-five] feet from any front, side or
               rear property line or within the building setbacks for
               the zoning district, whichever is greater.

               C. Maximum     lot   coverage   shall   be   [thirty-five
               percent].

      In May 2016, plaintiffs filed a bifurcated "Application Form for a

Variance/Appeal/Interpretation" seeking "[p]ermitted use as [a]ssembly

[u]se."2 See N.J.S.A. 40:55D-76(b). The Board held three hearings on the

application.


2
   In September 2016, the Township entered into a Consent Interim Agreement
with plaintiffs and the property's owner that the Chancery Division entered as
a final consent order on October 25, 2016. In pertinent part, the consent order
allowed plaintiffs to host "weddings and special events" at the property until
October 31, 2016, after which plaintiffs would require "zoning or [c]ourt
approval."


                                                                           A-1388-17T1
                                         4
      Plaintiffs argued the property qualified for use as a "banquet facilit[y]"

within the meaning of Ordinance 109-4. Plaintiffs described that wedding

receptions and reunions were held under a tent temporarily erected over a

tennis court.     Plaintiffs asserted that, collectively, "the whole facility"

constituted "a permanent structure" because even though the banquets held on

the property primarily took place under the tent on the tennis court, "there are

other locations that could be used for a banquet." Plaintiffs rent out both

homes on the property when a reception is held, noting that the "main estate

house" is "especially suitable for a bridal suite," and that the wedding party

will reside in the homes "during the events." However, plaintiffs clarified that

the "homes are strictly for the guests staying in them," the bathrooms and

kitchens in both homes are not used during receptions, and caterers and

portable bathroom facilities are brought onto the property to accommodate

receptions.     Plaintiffs' expert witness, James Miller, a certified planner,

testified that he believed the tennis court on the property constituted a

"structure," and that although the receptions "primarily" take place on the

tennis court, he believed the "whole facility is a permanent structure."

      Additionally, plaintiffs argued that the property met Ordinance 109-

104's conditional use requirements because the evidence showed the property


                                                                           A-1388-17T1
                                       5
contains 5.6 "buildable" acres, the largest contiguous tract of which is 3.7

acres. Plaintiffs acknowledged that a pool deck, barn, and gazebo violated

Ordinance 109-104(B)'s seventy-five-foot setback requirement, but agreed to

remove them in order to comply with the ordinance.3 Additionally, plaintiffs

presented evidence showing that the property's lot coverage was six percent,

well within Ordinance 109-104(C)'s thirty-five percent limit.

      The Township opposed plaintiffs' application, arguing that Ordinance

109-4 required the "assembly" use be contained within a permanent building or

permanent structure. The Township argued that because the assembly took

place under a tent temporarily erected over the tennis court, plaintiffs failed to

show the use would be contained within a permanent building or permanent

structure.   The Township also argued plaintiffs' proposed use violated

Ordinance 109-104(A) because the ordinance required four contiguous

"buildable" acres, and the property's largest contiguous tract of "buildable"

acreage was only 3.18 acres.

      Alternatively, plaintiffs argued that if the Board adopted the Township's

interpretation of Ordinance 109-104, they had presented evidence establishing


3
   As plaintiffs agreed to remove these offending features, plaintiffs'
compliance with Ordinance 109-104(B) is not an issue in this appeal.


                                                                         A-1388-17T1
                                       6
an entitlement to a conditional use variance. See N.J.S.A. 40:55D-70(d)(3).

Russell Smith, plaintiffs' engineering and planning expert, testified that

granting plaintiffs a variance from Ordinance 109-104(A)'s buildable area

requirement would have no impact on the surrounding properties. He testified

that plaintiffs did not plan to build any new buildings or structures on the

property, and that there was ample space for reception attendees throughout

the property. The Township, however, argued plaintiffs should not be granted

a conditional use variance because the noise generated from plaintiffs' events

was detrimental to the neighboring residences. Several members of the public

appeared in opposition to plaintiffs' application and voiced displeasure with

the noise created by plaintiffs' events.

      The Board denied plaintiffs' application.         The Board interpreted

Ordinance 109-4 to require "a permanent structure in which the assembly

occurs." Based on this interpretation, the Board determined that the tent that is

attached to the tennis court during a reception did not constitute a permanent

structure and did not properly contain the use. Further, the Board found that

"without the tent, which is not a permanent [structure], [the property] wouldn't

be suitable for assembly." The Board determined that although there were

other permanent buildings on the property, such as the main estate house and


                                                                        A-1388-17T1
                                           7
the cottage house, the testimony established that "none of those structures were

good uses for assembly" or that "there could be an assembly in those

buildings."   The Board rejected plaintiffs' position that the entire property

constituted a "facility" within the meaning of Ordinance 109-4: plaintiffs'

evidence showed the assemblies were not held in the buildings and plaintiffs

required the assistance of third-party vendors to provide food, seating, and

bathroom facilities during the receptions. The Board concluded that "all of the

buildings together as a collective . . . don't support . . . any assembly use," and

determined plaintiffs failed to establish their use of the property qualified as an

"assembly" use.

      The Board also found the property failed to satisfy Ordinance 109-104's

conditional use requirements. The Board interpreted Ordinance 109-104(A) to

require that the assembly use take place within four contiguous buildable

acres, and plaintiffs' evidence showed the property's largest contiguous tract of

buildable land is only 3.7 acres. Additionally, the Board found that plaintiffs

could not be granted a conditional use variance because the noise generated by

plaintiffs' use was detrimental to the surrounding area.

      Plaintiffs filed a complaint in lieu of prerogative writs, claiming the

Board "incorrectly interpreted the criteria to be used to determine if a use is an


                                                                          A-1388-17T1
                                       8
'assembly use'" under Ordinance 109-4,4 as well as "improperly determined"

that Ordinance 109-104(A) required four contiguous buildable acres. 5

Plaintiffs argued in the alternative that if the court adopted defendants'

interpretation of Ordinance 109-104 as requiring four contiguous buildable

acres, then the Board also erred by denying plaintiffs a conditional use

variance based on irrelevant and inappropriate criteria. See N.J.S.A. 40:55D-

70(d)(3).

      The court heard argument and rendered an oral decision reversing the

Board's determination.    The court interpreted "assembly" under Ordinance

109-4 to require only a permanent facility, and found the term "permanent" did

not modify the words "building, structure, or installation." However, the court

noted that even if the word "permanent" modified "facility, building, structure,

4
   Plaintiffs conceded before the Board that if their use did not satisfy
Ordinance 109-4's definition of "assembly," they would have difficulty
proving the necessary criteria to be granted a use variance pursuant to N.J.S.A.
40:55D-70(d)(1).
5
    Plaintiffs also asserted that defendants were equitably estopped from
proscribing the intended use of the property because the Township had been on
notice of the use. The court did not decide the matter on this issue, and neither
party has addressed the issue on appeal. We therefore deem the argument
waived. See Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525 n.4
(App. Div. 2008) (finding an issue not briefed on appeal is deemed waived);
see also Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2
(2019).


                                                                        A-1388-17T1
                                      9
[and] installation," it was "satisfied that this proposed use here, banquet

facility, is conducted in large part in or on permanent structures, including the

main estate house, the cottage, [and] the tennis court itself where the tent is

constructed."

      The court refused to adopt defendants' interpretation of Ordinance 109-4

requiring that the permanent structure "contain" or "house" the use. The court

determined the Board's interpretation was "reading language into the

ordinance" that "is just not there," and found that "the fact that the main

reception occurs . . . in a tent . . . is [not] enough to . . . declare that this

proposed use does not meet the definition of an . . . assembly use." Instead,

the court interpreted "facility" as "[s]omething designed, built or installed to

afford a specific convenience or service," and found that "even though the

main use . . . might take place in a tent . . . the tennis court surface itself is a

structure of sorts, a facility." The court adopted plaintiffs' position, found that

"the whole piece of property with all the things that were built on it mee ts the

definition of a facility," and concluded that plaintiffs' use satisfied Ordinance

109-4.

      The court also declined to adopt the Board's interpretation of

Ordinance 109-104(A).       Rather, it held the ordinance did not require a


                                                                           A-1388-17T1
                                       10
contiguous tract of four "buildable" acres.        Therefore, the court found

plaintiffs' evidence that the property contained 5.6 non-contiguous "buildable"

acres satisfied Ordinance 109-104(A). Based on its finding plaintiffs satisfied

Ordinance 109-104's requirements, the court found it unnecessary to determine

whether plaintiffs were entitled to a conditional use variance.

      The court reversed the Board's determination, granted plaintiffs'

application, issued an order memorializing its decision, and remanded the

matter to "the [Board] and/or Planning Board[] for such further proceedings as

may be required." This appeal followed.

      Defendants submit the following arguments for our consideration:

            POINT ONE

            THE TRIAL COURT ERRED IN INTERPRETING
            THE ORDINANCE, AND THE INTERPRETATION
            OF THE ZONING BOARD OF ADJUSTMENT
            SHOULD BE GIVEN DEFERENCE.

            POINT TWO

            THE ZONING BOARD OF ADJUSTMENT WAS
            CORRECT IN DETERMINING THAT AN
            "ASSEMBLY USE" REQUIRES A PERMANENT
            BUILDING FOR HOUSING THE USE, AND THAT
            THE PROPERTY TO BE SUBJECTED TO SUCH A
            USE   MUST   HAVE    AT   LEAST   FOUR
            CONTIGUOUS BUILDABLE ACRES.



                                                                      A-1388-17T1
                                     11
            POINT THREE

            THE TRIAL COURT ERRED IN FAILING TO
            ADDRESS THE NEGATIVE CRITERIA OF
            RESPONDENTS' APPLICATION.

            POINT FOUR

            THE BOARD OF ADJUSTMENT WAS JUSTIFIED
            IN REJECTING RESPONDENT[S'] CONDITIONAL
            USE VARIANCE APPLICATION FOR A PLOT OF
            LAND WITH LESS THAN FOUR CONTIGUOUS
            BUILDABLE ACRES.

                                     II.

      A zoning board's decisions "enjoy a presumption of validity, and a court

may not substitute its judgment for that of the board unless there has b een a

clear abuse of discretion." Price v. Himeji, LLC, 214 N.J. 263, 284 (2013). A

zoning board abuses its discretion, for example, when its decision to grant or

deny a conditional use application is premised upon the misinterpretation of a

municipal ordinance. See Adams v. Delmonte, 309 N.J. Super. 572, 575 (App.

Div. 1998) (holding the zoning board misinterpreted the applicable conditional

use ordinance when the zoning board allowed the defendant to operate a septic

tank cleaning business out of his home as a "home occupation"). "[T]he 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


                                                                      A-1388-17T1
                                    12
challenging the action." Grabowsky v. Township of Montclair, 221 N.J. 536,

551 (2015). "The same standard of review applies to our review of a trial

court's decision on appeal from such a determination." Dunbar Homes, Inc. v.

Zoning Bd. of Adjustment of Twp. of Franklin, 448 N.J. Super. 583, 595 (App.

Div. 2017), aff'd 233 N.J. 546 (2018).

      Defendants argue that the court misinterpreted Ordinance 109-4, and

should have deferred to the Board's interpretation. "As with other legislative

provisions, the meaning of an ordinance's language is a question of law that we

review de novo." Bubis v. Kassin, 184 N.J. 612, 627 (2005). Although a

zoning board's "informal interpretation of an ordinance is entitled to

deference . . . that deference is not limitless." Mountain Hill, LLC v. Zoning

Bd. of Adjustment of Twp. of Middletown, 403 N.J. Super. 210, 235 (App.

Div. 2008) (quoting Bubis, 184 N.J. at 627). A trial judge's interpretation of a

zoning ordinance is not entitled to deference. Dunbar Homes, 448 N.J. Super.

at 595.

      "The established rules of statutory construction govern the interpretation

of a municipal ordinance. . . . Those principles require that an ordinance

should be interpreted to 'effectuate the legislative intent in light of the

language used and the objects sought to be achieved.'"            Township of


                                                                       A-1388-17T1
                                     13
Pennsauken v. Schad, 160 N.J. 156, 170 (1999) (quoting Merin v. Maglaki,

126 N.J. 430, 435 (1992)). The "first step of statutory construction requires an

examination of the language of the ordinance." Ibid. In such an examination,

"[w]e ascribe to the . . . words their ordinary meaning and significance,"

DiProspero v. Penn, 183 N.J. 477, 492 (2005), and "[t]he meaning derived

from that language controls if it is clear and unambiguous," Schad, 160 N.J. at

170. Where the plain language "is susceptible to different interpretations, the

court considers extrinsic factors, such as the statute's purpose, legislative

history, and statutory context to ascertain the legislature's intent." Ibid.

      Although zoning ordinances are generally to be "liberally construed in

favor of the municipality," an ordinance must be "clear and unambiguous so

that [persons] of ordinary intellect need not guess at [its] meaning." Id. at 171

(alterations in original) (citation omitted). Moreover, "limitations on the use

of private property must be clearly and expressly imposed, and should not be

inferred." Mountain Hill, 403 N.J. Super. at 236 (quoting Hrycenko v. Bd. of

Adjustment, City of Elizabeth, 27 N.J. Super. 376, 379 (App. Div. 1953)).




                                                                           A-1388-17T1
                                       14
       Defendants first argue the court misinterpreted the definition of

"assembly" because the adjective "permanent" 6 modifies the words "building,

structure, or installation" in Ordinance 109-4. The court interpreted Ordinance

109-4's language to require only a "permanent facility," and held that a

"building, structure, or installation" need not be permanent to be an "assembly"

use.

       Ordinance 109-4, which is not a model of clarity, defines "assembly" as

"[a] use which is a permanent facility, building, structure, or installation"

which provides for "assemblage purposes."           We, however, agree with

defendants that "permanent," as used in Ordinance 109-4, modifies "facility,

building, structure, [and] installation." The series-qualifier canon, despite its

"fancy name," Lockhart v. United States, 577 U.S. ___, 136 S. Ct. 958, 970

(2016) (Kagan, J., dissenting), provides that "when there is a straightforward,

parallel construction that involves all nouns or verbs in a series, a


6
  "Permanent" is not defined in Ordinance 109-4. As "[t]he language of the
ordinance 'should be given its ordinary meaning absent specific intent to the
contrary,'" Heyert v. Taddese, 431 N.J. Super. 388, 424 (App. Div. 2013)
(quoting Mortimer v. Bd. of Review, 99 N.J. 393, 398 (1985)), we hereinafter
use the term "permanent" in accordance with its ordinary meaning as
"continuing or enduring without fundamental or marked change," Merriam-
Webster.com                 Dictionary,                  https://www.merriam-
webster.com/dictionary/permanent (last visited June 19, 2019).


                                                                        A-1388-17T1
                                     15
prepositive . . . modifier normally applies to the entire series," Black's Law

Dictionary 1574 (10th ed. 2014). The canon will normally apply where "the

nouns and verbs are listed without any intervening modifiers." United States

ex rel. Vaughn v. United Biologics, LLC, 907 F.3d 187, 195 (5th Cir. 2018);

cf. United States v. Loyd, 886 F.3d 686, 688 (8th Cir. 2018) (declining to

interpret a statute using the series-qualifier canon where "the statute does not

present . . . a single, uninterrupted series").   We apply the canon here.

Ordinance 109-4's definition of "assembly" provides an uninterrupted series of

nouns that are modified by the prepositive adjective "permanent," and are

uninterrupted by an intervening modifier. Therefore, we hold that "assembly,"

as defined by Ordinance 109-4, requires that any qualifying facility, building,

structure or installation be permanent.

      Defendants next contend the court misinterpreted Ordinance 109-4

because it requires the use to be "contained within a permanent building," such

that the building would "shield adjacent residential uses from the adverse

impacts." Although such would certainly have been reasonable, defendants'

interpretation of Ordinance 109-4 fails to find support in the ordinance's plain

language. The ordinance states that a "permanent facility, building, structure,

or installation" must "provid[e] for . . . assemblage purposes."    It does not


                                                                       A-1388-17T1
                                     16
require that the "facility, building, structure, or installation" "contain" or

"house" the use, and "[w]e cannot 'write in an additional qualification which

the Legislature pointedly omitted in drafting its own enactment.'" Mountain

Hill, 403 N.J. Super. at 239 (alteration in original) (quoting DiProspero, 183

N.J. at 492).

      Moreover, defendants' interpretation improperly imposes properties that

typically characterize "building[s]" to the separately listed "facilit[ies],"

"structure[s]," and "installation[s]," some of which are clearly not buildings.

"It is a cardinal rule of statutory construction that full effect should be given, if

possible, to every word of a statute." McCann v. Clerk of Jersey City, 167 N.J.

311, 321 (2001) (quoting Gabin v. Skyline Cabana Club, 54 N.J. 550, 555

(1969)). "Building," as defined by Ordinance 109-4, is "[a] combination of

materials to form a construction adapted to a permanent, temporary or

continuous occupancy and have a roof."            "Structure" is also defined by

Ordinance 109-4 as:

             Anything constructed or erected which requires
             permanent or temporary attachment to something
             which is erected on the ground and designed, intended
             or arranged for the housing, shelter, enclosure and/or
             structural support of persons, animals or property of
             any kind, excluding unroofed patios at ground level,
             parking lots or driveways, and fences in compliance
             with this chapter.

                                                                            A-1388-17T1
                                       17
      "Facility" and "installation" are not defined by Ordinance 109-4, and

because "[t]he language of the ordinance 'should be given its ordinary meaning

absent specific intent to the contrary,'" Heyert, 431 N.J. Super. at 424 (quoting

Mortimer, 99 N.J. at 398), we therefore turn to the ordinary meanings of those

terms.   "Facility" is defined as "something . . . that is built, installed, or

established to serve a particular purpose." Merriam-Webster.com Dictionary,

https://www.merriam-webster.com/dictionary/facility (last visited June 18,

2019). "Installation" is defined as "something installed for use," Merriam-

Webster.com                      Dictionary,               https://www.merriam-

webster.com/dictionary/installation (last visited June 18, 2019), and is

synonymous with the term "center," defined as "a facility providing a place for

a   particular   activity   or    service,"    Merriam-Webster.com   Dictionary,

https://www.merriam-webster.com/dictionary/center (last visited June 19,

2019).

      Each of these terms have elements separate and distinct from one

another; for example, a "building" requires a roof, an element not required to

be present in a "facility," "structure," or "installation."   Therefore, to give

effect to each of the terms used in the ordinance, we find that facilities,

structures, and installations are different from buildings and they neither


                                                                        A-1388-17T1
                                        18
require roofs nor must they be "adapted to a permanent, temporary, or

continuous occupancy." See McCann, 167 N.J. at 321 ("We cannot assume

that the Legislature used meaningless language." (quoting Gabin, 54 N.J. at

555)). We therefore decline to adopt defendants' interpretation of Ordinance

109-4 that would require the assembly use to be "contained within a permanent

building."

      The parties do not argue that any building or installation on the property

provides for the assembly use. The primary location for receptions on the

property is the tennis court, which the court determined was a permanent

facility within the meaning of Ordinance 109-4.         We agree.     Plaintiffs'

evidence showed that when receptions are held at the property, a tent is erected

over the tennis court, and the tennis court is then used as "a pad site" for

reception attendees to gather, eat and dance. Plaintiffs have, through their

proposed use of the property, "established" the tennis court "to serve a

particular purpose": providing the property's banquet space.           Facility,

Merriam-Webster.com               Dictionary,            https://www.merriam-

webster.com/dictionary/facility (last visited June 18, 2019). We further agree

with the court that the tent which is temporarily erected over the tennis court

does not detract from the tennis court's permanency as a facility: the tennis


                                                                       A-1388-17T1
                                     19
court is the place where receptions are held and, as the evidence showed and as

defendants' counsel candidly acknowledged at oral argument on this appeal,

the tennis court is a permanent aspect of the property. The court's finding that

the tennis court constitutes a permanent facility under Ordinance 109-4 is

supported by the evidence.

      Having determined the tennis court is a permanent facility within the

meaning of Ordinance 109-4, we must also determine whether the court erred

by finding the property also satisfied Ordinance 109-104(A)'s buildable

acreage requirement. Defendants argue the court misinterpreted Ordinance

109-104(A), and contend Ordinance 109-104(A) requires that the property

have four contiguous buildable acres.

      We again consider the plain language of the ordinance. Schad, 160 N.J.

at 170. Ordinance 109-104(A) requires that "[t]he minimum lot size" for a

conditional assembly use "shall be five acres, at least four of which shall be

buildable." The word "buildable" is not defined in the Township's ordinances .

Ordinance 109-4, however, defines a "buildable area" as "the contiguous area

of any lot exclusive of critical environmental areas." Defendants argue that

Ordinance 109-104(A)'s use of the term "buildable" should be interpreted to

incorporate the definition of "buildable area" in Ordinance 109-104(A) and, as


                                                                       A-1388-17T1
                                     20
such, there is a requirement that plaintiffs' property have four contiguous

buildable acres for an assembly use. Plaintiffs argue the exclusion of the

entire phrase "buildable area" from Ordinance 109-104(A) means that there is

no requirement that the four "buildable" acres be contiguous.

      We find Ordinance 109-104(A) imposes no contiguity requirement.

Ordinance 109-104(A) does not use the phrase "buildable area," or the term

"contiguous." Defendants, in essence, request that we re-write Ordinance 109-

104(A) to read "[t]he minimum lot size shall be five acres, at least four of

which shall constitute a buildable area." (Emphasis added). Although the

"general rule" of statutory interpretation is that "a word or phrase should have

the same meaning throughout the statute in the absence of a clear indication to

the contrary," Perez v. Pantasote, Inc., 95 N.J. 105, 116 (1984), where the

drafter "has 'pointedly omitted' a term from an enactment, we cannot presume

to write that term" into the ordinance, Verry v. Franklin Fire Dist. No. 1, 230

N.J. 285, 298 (2017) (quoting DiProspero, 183 N.J. at 492). Ordinance 109-

104(A) merely requires that four acres be "buildable," and does not otherwise

require those four acres to be a contiguous, four-acre "buildable area." We

decline to "write in an additional qualification" that was omitted, Mountain




                                                                       A-1388-17T1
                                     21
Hill, 403 N.J. Super. at 239 (quoting DiProspero, 183 N.J. at 492), and hold

Ordinance 109-104(A) does not require four contiguous buildable acres.

      Based on our interpretation of Ordinance 109-104(A), we affirm the

court's order and hold the Board abused its discretion by denying plaintiffs'

application for a conditional use approval. See Adams, 309 N.J. Super. at 575.

The evidence before the Board showed that the property consisted of 5.6

"buildable" acres, satisfying Ordinance 109-104(A). It further showed that the

property satisfied the maximum lot coverage requirement of Ordinance 109-

104(C) and, as discussed above, the property's compliance with Ordinance

109-104(B)'s setback requirement was not an issue due to plaintiffs' agreement

to remove the offending features. We need not address defendants' arguments

regarding whether the property qualified for a conditional use variance because

a conditional use variance is unnecessary.

      Because we affirm the court's reversal of the Board's decision, we

remand the matter to the Board for consideration of plaintiffs' site plan. See

N.J.S.A. 40:55D-76(b). We do not agree with plaintiffs' representations that a

site plan need not be submitted for the property. Township of West Amwell,

N.J., Land Development Ordinance 109-214 (Dec. 28, 1990) requires




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submission of a site plan in all matters except those situations specifically

outlined in subsection (E), none of which apply here.

      We affirm the court's October 20, 2017 order reversing the Board's

denial of plaintiffs' conditional use application. We remand to the Board for

consideration of plaintiffs' site plan, see N.J.S.A. 40:55D-76(b), and plaintiffs

shall comply with the applicable requirements to obtain approval of a site plan

before the Board.

      Affirmed and remanded for consideration of plaintiff's site plan

application. We do not retain jurisdiction.




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