                 NOT FOR PUBLICATION WITHOUT THE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,
                                     APPROVED FOR PUBLICATION
     Plaintiffs-Appellants,
                                            July 27, 2016

v.                                        APPELLATE DIVISION

THE PLANNING/ZONING BOARD OF
THE BOROUGH OF SOUTH TOMS RIVER
and WAWA, INC.,

     Defendants-Respondents.
_______________________________________

         Argued March 8, 2016 - Decided July 27, 2016

         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).
       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).



                                                     2                                          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)


                                        3                                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.




                                    4                             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.



                                             5                                          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




                                       6                             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



                                    7                              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



                                  8                           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




                                     9                          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.



                                               10                                   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




                                            11                                       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'




                                           12                                   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.




                                   13                              A-2075-14T2
