DE SAPIO PROPERTIES SIX, INC. VS. ALEXANDRIA TOWNSHIP BOARD OF ADJUSTMENT (L-0016-16, HUNTERDON COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-5585-15T2
DE SAPIO PROPERTIES #SIX,
INC. and DELAWARE RIVER
TUBING, INC.,
Plaintiffs-Respondents,
v.
ALEXANDRIA TOWNSHIP
BOARD OF ADJUSTMENT,
Defendant-Appellant.
_______________________________________
Argued October 2, 2017 – Decided August 28, 2018
Before Judges Messano and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Hunterdon County, Docket No.
L-0016-16.
Joseph C. Tauriello argued the cause for
appellant (Mason, Griffin & Pierson, PC,
attorneys; Joseph C. Tauriello, on the
brief).
Gaetano M. DeSapio argued the cause for
respondent.
PER CURIAM
In this land use matter, defendant Alexandria Township
Board of Adjustment (board) appeals from a Law Division judgment
that reverses two of its resolutions and finds plaintiffs'
proposed use of certain property to be a permitted use. After
reviewing the record and applicable legal principles, we affirm.
I
Plaintiff DeSapio Properties #Six, Inc., (property owner)
owns a lot in Alexandria Township (township) on which is a
commercial building and a large parking lot. In August 2015,
the property owner leased a shop in its building to plaintiff
Delaware River Tubing, Inc. (DRT), out of which DRT sells
various goods and small watercraft, such as tubes, rafts,
kayaks, and canoes. In addition, DRT rents out such watercraft
for use on the Delaware River. If a customer rents a craft, DRT
transports the customer and the craft from DRT’s parking lot to
a specific location on the river where the craft is launched.
After the river trip concludes down the river, the customer and
the craft are picked up and transported back to the store.
Around the time DRT opened its shop, plaintiffs sought a
permit from the township to enable DRT to use the premises as a
retail establishment. Plaintiffs' application described DRT's
business as "a retail establishment that sells retail goods such
as T-shirts, hats, water cameras, water shoes and other related
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river good[s]. We also rent tubes, rafts, kayaks and canoes,
and provide a free shuttle service to and from the river, only
to those who rent equipment. No other shuttle or bus service is
provided under any other circumstances."
The zoning officer denied the application on the ground the
proposed use was "commercial recreation," which he concluded was
not a permitted use in the zone. In support of his decision,
the zoning officer cited township ordinance 115-13A(2). We note
the latter ordinance makes no reference to "commercial
recreation."
The property owner appealed the zoning officer's
determination to the board and sought a "zoning interpretation."
The property owner contended the kind of business DRT wanted to
conduct was a permitted use in the zone. Among other things,
the property owner claimed the proposed use was a retail shop
and, thus, a permitted use pursuant to ordinance 115-22E(1). In
the alternative, the property owner asserted the use was a
service business, a permitted use pursuant to ordinance 115-
22E(3). The board conducted a hearing; the relevant evidence
was as follows.
DRT's president, Gregory Crance, testified DRT has been in
business since 2003 and, in 2015, he decided to move DRT to the
township. His description of DRT was essentially consistent
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with what plaintiffs provided in their application to the zoning
officer, although Crance clarified the cost of shuttling
customers to and from the river is included in the price of
renting any watercraft. He estimated seventy-five percent of
DRT's income is derived from renting watercraft and twenty-five
percent is from the sale of goods.
Crance noted transporting customers who rent watercraft to
and from the river is a service typically provided by
outfitters. He claimed that if DRT did not provide such
service, DRT would go out of business because customers who rent
watercraft usually need a means to transport them to the river.
In fact, approximately ninety-five percent of those who rent
watercraft from DRT take advantage of its shuttle service.
Crance testified DRT obtained an "exclusive concession
agreement" from the New Jersey Department of Environmental
Protection (DEP). This agreement granted DRT permission to use
two locations on the river to drop off and pick up customers and
watercraft. Crance explained an agreement of this kind with the
DEP is required for any outfitter to gain access to the river
for its customers to launch and remove watercraft. A business
may not use an access point along the river that has been
granted to another business by the DEP through a concession
agreement.
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Crance pointed out DRT's buses travel only a "quarter . . .
maybe a half a mile" through the township when DRT transports
customers either to or from the river. Immediately adjacent to
the property where DRT is located is a lumber business, where
construction vehicles and tractor-trailers enter and exit DRT's
adjoining parking lot throughout the day. Also adjacent to
DRT's parking lot is a fuel oil company where tractor-trailers
pull into the company's driveway, but Crance did not indicate
how frequently they did so.
The relevant testimony of plaintiffs' expert planner,
Elizabeth C. McKenzie, was as follows. The lot on which DRT is
located is large, measuring almost thirteen acres, and is in the
Industrial Commercial District. This District permits a range
of retail uses, including retail shops and service businesses.
One ordinance expressly states the intent of the Industrial
Commercial District is to provide sites for "light and heavy
industrial uses and more intensive retail commercial
activities."
In McKenzie's view, DRT is a retail shop because it sells
goods and rents equipment to be used on the river. According to
her, ordinance 115-22E(1) permits retail shops in this District.
This ordinance states in pertinent part:
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E. Retail and consumer services uses.
(1) E-1 Retail Shop. A retail
shop shall include a store selling
apparel, . . . [and] sporting
goods, . . . provided that
[certain conditions are met.]1
McKenzie opined the fact DRT transports certain customers
to and from the river is irrelevant to the issue of whether DRT
is a permitted use; that is, the busing of customers does not
change the nature of DRT's use of the site or disqualify it from
being a retail shop. She observed it is not unusual for
sporting goods stores to facilitate participation in those
activities that will lead to the sale of their goods or the
rental of their equipment. Many stores endeavor to enhance
business by providing transportation to locations where certain
recreational activities take place, likening DRT to ski shops
that arrange for transportation to ski areas.
David Banisch, the board's planner, also testified. In his
opinion, the proposed use is "a concession with an Omnibus
license or registration for transportation." He reasoned that,
because seventy-five percent of DRT's business is renting out
equipment for use on the river, then seventy-five percent of the
business is a "concession with a license to use a bus."
1
The conditions to which the ordinance refers are not in issue
and for the sake of brevity are not set forth here.
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Further, in his view, if a use is not specifically
identified in an ordinance as a permitted use, then the use is
prohibited. Because DRT is engaging in a use that is not
identified as a permitted use in any ordinance then, according
to him, such use is prohibited. Finding DRT's use of the
property was not permitted, Banisch determined the zoning
officer did not err when he denied plaintiffs a zoning permit.
The board issued two resolutions. One resolution responded
to the property owner's request for an interpretation of the
applicable zoning ordinances. In that resolution, the board
found
the retail component of the operation was a
small part of the operation in that the
majority of the operation consisted of
patron parking on site, rental of equipment,
transportation of patrons to and from the
river and the operation of the concession
license granted by the State of New Jersey.
As such the Board finds that the use of the
property did not meet the definition in
subsection E1 of the Ordinance[,] which
allows a "retail shop."
In its other resolution, the Board found the zoning
officer's denial of the permit proper because the proposed use
is not permitted by any ordinance and, thus, such use is
prohibited.
Plaintiffs filed a complaint in lieu of prerogative writs
challenging the board's resolutions. The trial court reversed
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the board, concluding the resolutions were unsupported by law.
Essentially, the trial court determined the term "retail" as
used in ordinance 115-22E(1) included both the renting and
selling of goods. The sole authority upon which the trial court
based its decision was a provision in the Sales and Use Tax Act
(Act), N.J.S.A. 54:32B-1 to -29. Specifically, the trial court
determined that because the term "retail sale" as defined by the
Act includes any "sale, lease, or rental," see N.J.S.A. 54:32B-
2(e), then the term "retail" as used in the subject ordinance
must also mean the lease or rental of goods.
While the matter was pending before the trial court, the
board granted the property owner a use variance, see N.J.S.A.
40:55D-70(d)(1). This variance permits DRT to use a portion of
the site for parking and to transport its customers and
watercraft to and from the river. The use variance is subject
to various conditions, none of which needs to be addressed here.
Notwithstanding the fact it granted a use variance, the
board maintains the trial court's determination is erroneous and
must be reversed. Accordingly, the board appeals from the trial
court's judgment.
II
On appeal, the board contends the trial court erred because
it: (1) reviewed the matter de novo, and (2) disregarded
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evidence DRT's predominant use of the site was not to sell goods
but to rent equipment, provide customers long-term parking while
they engaged in off-site activities, transport customers to and
from the river, and operate a concession license. The board
also requests we find the use variance it granted to plaintiffs
was appropriate, and that a site plan is necessary, even if the
use is permitted.
We decline to address whether the use variance is
appropriate and if a site plan is necessary, because those
issues are not before us. The board's notice of appeal reveals
it appeals from only the trial court's judgment. An appeal is
limited to those judgments or orders designated in the notice of
appeal. See Pressler & Verniero, Current N.J. Court Rules, cmt.
6.1 on R. 2:5-1 (2018); see also Campagna ex rel. Greco v. Am.
Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div. 2001)
(refusing to consider a challenge to an order not listed in the
notice of appeal).
We turn to the standard of review. When reviewing the
decision of a trial court that has reviewed a decision of a
board of adjustment, we are bound by the same standards as was
the trial court. Fred McDowell, Inc. v. Bd. of Adjustment of
Township of Wall, 334 N.J. Super. 201, 212 (App. Div. 2000).
Thus, we determine whether the "board decision is supported by
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the record and is not so arbitrary, capricious, or unreasonable
as to amount to an abuse of discretion." New Brunswick Cellular
Tel. Co. v. S. Plainfield Bd. of Adjustment, 160 N.J. 1, 14
(1999) (citation omitted).
However, we review de novo a board's conclusions of law.
Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993). Consequently, we
exercise plenary review of a board's interpretation of its
ordinances. Ibid.; see also Adams v. Delmonte, 309 N.J. Super.
572, 583 (App. Div. 1998) (considering de novo whether a
particular service business "qualifie[d] as a home occupation
under the ordinance").
Here, there is no question the trial court applied the
appropriate standard of review. No further discussion on this
point is warranted. See R. 2:11-3(e)(1)(E). The next question
is whether the trial court erred when it found DRT is a retail
shop and, thus, DRT's use of the site is permitted under
ordinance 115-22E(1).
As previously noted, ordinance 115-22E(1) states in
pertinent part:
E. Retail and consumer services uses.
(1) E-1 Retail Shop. A retail
shop shall include a store selling
apparel, . . . [and] sporting
goods . . . .
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The board does not dispute DRT sells apparel and sporting
goods, but it does maintain DRT's principal use2 of the site does
not include selling goods and, therefore, DRT is not a retail
shop pursuant to ordinance 115-22E(1). Rather, the board
contends DRT's principal use of the property is to rent
equipment, permit customers to use its parking lot while they
use DRT's equipment, transport customers and crafts to the river
and back, and make use of its concessions. Therefore, it is the
board’s position the principal use of the property is not a
permitted one under ordinance 115-22E(1).
As stated, the trial court determined DRT is a retail shop,
making it a permitted use pursuant to this ordinance. However,
the trial court's conclusion DRT is a retail shop was based
solely upon the definition of "retail sale" in the Sales and Use
Tax Act, see N.J.S.A. 54:32B-2(e). That definition is
unavailing, because it is to be used only to define "retail
sale" as that term is used in the Act. Therefore, based upon
the trial court’s rationale, DRT cannot be deemed a retail shop
under the subject ordinance.
2
Ordinance 115-4 defines "use" as the "specific purpose for
which land or a building . . . thereon is designed, arranged or
intended, or for which it may be occupied or maintained." It
defines a principal use as "[a] main use; a use which is not
incidental or subordinate to another use on the same lot."
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However, as advocated by the property owner when before the
board, ordinance 115-22E(3), which pertains to businesses which
provide services, DRT's particular use of the subject site is
permitted. That ordinance states in pertinent part:
E-3 Service Business. A service business
shall include such uses as a barber,
beautician, laundry and dry cleaning
(whether or not coin operated), shoe repair,
tailor, photographer, newspaper, printer and
travel agency, provided that [certain
conditions are met.]3
Before proceeding further, we note the board interprets the
term "shall include" in an ordinance as one of limitation.
Thus, we expect the board would interpret ordinance 115-22E(3)
to mean that only those kinds of businesses specifically listed
in the ordinance are services business.
It has long been settled the term "shall include" as used
in this context is not intended to be exclusive or to have a
restrictive meaning. See Levitt & Sons, Inc. v. Division
Against Discrimination, 31 N.J. 514, 526 (1960) (holding the
words "shall include" means the examples listed in a statute are
merely "illustrations of the meaning of the phrase being
considered, rather than an exhaustive enumeration."); Snegon v.
Consol. Indem. & Ins. Co., 117 N.J. Eq. 325, 330 (Ch. 1934)
3
The conditions to which the ordinance refers are not in issue
and are not set forth here.
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(holding the use of the words "shall include" is not to limit
but amplify the classification to which it applies). Therefore,
ordinance 115-22E(3) does not confine the definition of service
businesses to only those listed in it.
The term "service business" is not defined in the ordinance
that provides the definition of various terms used in the
township’s zoning ordinances, see ordinance 115-4, and there is
no evidence what the township intended by this term when it
drafted and adopted ordinance 115-22E(3). We therefore resort
to the dictionary to ascertain the meaning of this term. See
Macysyn v. Hensler, 329 N.J. Super. 476, 485 (App. Div. 2000).
Research discloses only one dictionary defines "service
business." That definition informs that a service business is
"[a] commercial enterprise that provides work performed in an
expert manner by an individual or team for the benefit of its
customers. The typical service business provides intangible
products, such as accounting, banking, consulting, cleaning,
landscaping, education, insurance, treatment, and transportation
services." Service Business, http://www.businessdictionary.com/
definition/service-business.html (last visited August 21)
(emphasis supplied).
The word "business" is clear; resort to reference resources
to understand such term is unnecessary. The word "service" is
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less clear. The Cambridge English Dictionary defines "service"
as "a business that provides something for people but does not
produce goods[.]" Service, Cambridge English Dictionary,
https://dictionary.cambridge.org/us/dictionary/english/service
(last visited August 21, 2018). The Collins-English Dictionary
defines "services" as "activities such as tourism, banking, and
selling things which are part of a country's economy, but are
not concerned with producing or manufacturing goods." Services,
Collins Dictionary,
https://www.collinsdictionary.com/us/dictionary/english/service
(last visited August 21, 2018).
Here, as the board found, the retail component of DRT’s
operation is only a small part of its operation, as DRT is
predominantly in business to provide services. Those services
include renting out watercraft and transporting customers to and
from the Delaware River, and, while customers avail themselves
of these services, customers are permitted to park their
vehicles in DRT’s parking lot. Because DRT’s principal use is
to provide services, such use is a permitted one pursuant to
ordinance 115-22E(3).
Although we disagree with the trial court’s conclusion that
DRT’s use of the premises is a permitted one on the ground
expressed by that court, we are satisfied DRT’s use of the
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premises is permitted pursuant to ordinance 115-22E(3), and
affirm the judgment under review. "[A]n order or judgment will
be affirmed on appeal if it is correct, even though the judge
gave the wrong reasons for it." Ellison v. Evergreen Cemetery,
266 N.J. Super. 74, 78 (App. Div. 1993) (citing Isko v. Planning
Bd., 51 N.J. 162, 175 (1968)).
Affirmed.
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