1650 Corporate Road West, LLC v. the Township Committee of the Township of Lakewood

NOT FOR PUBLICATION WITHOUT THE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-4035-23

1650 CORPORATE ROAD

WEST, LLC,

Plaintiff-Appellant,

v.

THE TOWNSHIP COMMITTEE

OF THE TOWNSHIP OF

LAKEWOOD and THE

TOWNSHIP OF LAKEWOOD

PLANNING BOARD,

Defendants-Respondents.

______________________________

Argued February 25, 2026 – Decided March 30, 2026

Before Judges Mayer, Paganelli, and Jacobs.

On appeal from the Superior Court of New Jersey, Law

Division, Ocean County, Docket No. L-0203-23.

Robert C. Shea argued the cause for appellant (R.C.

Shea & Associates, attorneys; Robert C. Shea, of

counsel and on the briefs; Vincent J. DelRiccio, on the

briefs).

Robin La Bue argued the cause for respondent

Township Committee of Township of Lakewood

(Rothstein Mandell Strohm Halm & Cipriani, attorneys;

Robin La Bue, on the brief).

Jilian McLeer argued the cause for respondent

Township of Lakewood Planning Board (John J.

Jackson III & Associates, Attorneys at Law, LLC,

attorneys; John J. Jackson, III, of counsel and on the

brief; Jilian McLeer, on the brief).

PER CURIAM

Plaintiff 1650 Corporate Road West, LLC appeals from an October 17,

2023 order granting partial summary judgment to defendant Township of

Lakewood Planning Board (Board). It also appeals from a November 17, 2023

order denying reconsideration of the October 17 order and denying its request

to extend discovery. Plaintiff also appeals from a January 19, 2024 order

granting partial summary judgment to defendant Township Committee of the

Township of Lakewood (Township Committee). Additionally, plaintiff appeals

from a July 9, 2024 final judgment, after a bench trial, dismissing all remaining

counts of its amended complaint. We affirm all orders on appeal.

This case arises from plaintiff's procedural and substantive challenges to

the Township Committee's adoption of Ordinance 2022-046 (Ordinance). The

Ordinance permits catering facilities and banquet halls as accessory uses to

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schools in non-residential zones, provided the facility or hall meets specific

parking requirements.

Plaintiff owns property in Lakewood Township's (Township) M-1

industrial zone. The M-1 industrial zone expressly allows for schools as

permitted uses. Upon learning of the Township Committee's proposal to adopt

the Ordinance, plaintiff attended various Township Committee and Board

meetings addressing the Ordinance. At the meetings, plaintiff, its counsel, and

its expert planner raised procedural and substantive challenges to the Ordinance.

As relevant to our decision, we recite the actions of the Township Committee

and Board regarding adoption of the Ordinance.

The Board's November 23, 2021 meeting minutes noted the approval of

the Board's calendar for 2022. Notice of the Board's 2022 meeting dates was

published in the Asbury Park Press on December 4, 2021 and in The Star-Ledger

on December 7, 2021. According to the published notices, the Board scheduled

meetings for November 15 and November 29, 2022. The Board's 2022 annual

reorganization meeting occurred on January 4, 2022.

The Township Committee held its 2022 annual reorganization meeting on

January 3, 2022. The notice of the Township Committee's meetings for 2022

was published in The Star-Ledger on January 5, 2022. The notice stated the

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Township Committee would hold meetings on October 20, 2022 and December

8, 2022. In a certification, the Township Committee's clerk confirmed she

caused the annual notice of the Township Committee's 2022 meetings "to be

posted in the municipal building as well as mailed to both The Star-Ledger and

the Asbury Park Press." The Township clerk also attested the annual notice with

the Township Committee's 2022 meeting dates was published in the Star Ledger

on January 5, 2022.

The Township Committee's agenda for its October 20, 2022 meeting

indicated the Ordinance would be considered for a first reading. The agenda

further stated "[a]dequate notice of this meeting has been provided in accordance

with the provisions of the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6,

and published in The Star-Ledger on January 5, 2022."

At a virtual meeting on October 20, 2022, the Township Committee

introduced the Ordinance. Members of the public were invited to participate in

the virtual meeting through a secure web conferencing service or telephone and

were allowed to email public comments to the Township Committee.

Additionally, the Township Committee livestreamed and recorded the meeting.

The Ordinance, as first introduced, provided:

18-906 I. Public and Private Schools.

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In all zones where schools are permitted uses, catering

facilities and banquet halls shall be allowed as

accessory uses in the school buildings, provided the

following parking requirements are met:

Where the section of the school utilized for catering and

banquet functions is 800 square feet to 1,999 square

feet, 0.75 parking spaces shall be required for every 100

square feet of area utilized for catering and banquet

uses, and if the section of the school utilized for

catering and banquet functions is 2,000 square feet o[r]

greater, then 1.0 parking spaces shall be required for

every 100 square feet.

The minutes from the Township Committee's October 20, 2022 meeting

reflected some members of the public offered comments at the virtual

proceeding while others emailed comments. Generally, the comments

questioned the sufficiency of the parking requirements set forth in the

Ordinance. Plaintiff's attorney attended the meeting and stated he had submitted

a letter on plaintiff's behalf opposing the Ordinance.

The October 20, 2022 letter from plaintiff's attorney identified several

objections to the Ordinance. The letter stated the Ordinance "would create

havoc" for plaintiff's property and other properties located in the M-1 industrial

zone because "[t]he area [wa]s already plagued by heavy traffic congestion and

rampant unapproved street parking from the banquet halls already in existence ."

According to the letter, "[t]he addition of catering facilities and banquet halls as

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a permitted accessory use w[ould] exacerbate the existing difficulties

exponentially."

Following receipt of comments from the public, including plaintiff, the

Township Committee referred the Ordinance to the Board for its review and

recommendations. The Township Committee stated it would hold another

public hearing on the Ordinance after the Board's review.

In an October 26, 2022 notice published in The Star-Ledger, the Township

Committee confirmed the Ordinance had been introduced and would be further

considered for final passage at the Township Committee's December 8, 2022

meeting. Members of the public were invited to attend the December 8, 2022

meeting in person, through a secure web conferencing service, or by telephone.

The notice stated the identification number for the secure web conferencing

service would be posted on the Township's website and the meeting would be

livestreamed. The notice further stated members of the public could email

comments prior to or during the meeting.

On November 15, 2022, plaintiff's attorney sent another letter to the

Township advising the secure web conferencing service for the October 20, 2022

meeting did not allow him to participate. Plaintiff's counsel "request[ed] that

[the Township Committee] ensure that any defect with the [web conferencing

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service] is corrected" for the Township Committee's December 8, 2022 meeting.

Plaintiff's attorney also asked the Township Committee to provide him with the

link to the secure web conferencing service page, the correct meeting

identification number, and the correct passcode for the December 8 meeting.

The Board held a consistency review on the Ordinance at its November

15, 2022 meeting. The agenda for this meeting indicated "[t]he time, date and

location of th[e] meeting was published in the Asbury Park Press and The Star-

Ledger and posted on the bulletin board in the office of the Township . . . at least

[forty-eight] hours in advance." The agenda also noted an "ordinance for

review" would be considered by the Board on November 15.

At the start of the meeting, the Board's attorney advised the Board it was

tasked with determining if the Ordinance was "consistent or inconsistent with

the objectives of the [Township's m]aster [p]lan." The Board's attorney stated

that if the Board failed to respond to the Township Committee's review request,

then the Township Committee could "go forward without any input from the . . .

Board." He also indicated the Board's decision was "not binding upon the

governing body."

Addressing the specifics of the Ordinance, the Board's attorney explained

"[i]t's very common in Lakewood for there to be a school and to use a portion

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of the school . . . as a . . . catering hall." The Board's attorney further noted the

"Board ha[d] frequently in the past made a determination that a banquet hall

[wa]s . . . an accessory use to a school." He also stated, "a catering hall [wa]s . . .

a very important adjunct or accessory to a school because it [c]ould host

weddings and different types of events that [we]re associated with religious and

private schools."

At the Board's November 15, 2022 meeting, plaintiff's attorney stated

plaintiff had "significant issues" with the Ordinance. Plaintiff's counsel

explained plaintiff "fear[ed]" allowing banquet halls as a permitted accessory

use to schools "may take away a significant amount of buildings in the area."

Plaintiff retained a professional planner who testified at the Board's

November 15, 2022 meeting. Plaintiff's planner explained adopting the

Ordinance as introduced would allow banquet facilities "essentially[] every[]

place but [three] percent of the land in Lakewood." He further testified

permitting banquet halls in residential areas could be problematic due to setback

requirements and because "[n]ot many schools . . . go on until all hours of the

night and have festivities and catering" while "[m]ost banquet facilities do." In

reviewing the Ordinance, plaintiff's planner explained the Board should consider

"things like adequate lot area, how big [wa]s it, what [we]re [its] setbacks, what

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[we]re [its] buffers" and "not just parking." The planner opined the Ordinance

was not consistent with the Township's master plan.

After considering the comments at the November 15 meeting, the Board's

chairman formed an ad hoc committee to review the Ordinance. The ad hoc

committee planned to meet with the Board's professional planner and offer a

recommendation to the Board regarding the consistency of the Ordinance with

the Township's master plan.

On November 22, 2022, plaintiff's counsel sent a letter to the Board's

attorney and the Board's administrator with a report from plaintiff's planner

explaining why the Ordinance was inconsistent with the Township's master plan.

According to the report, "the specific language of the land use element [of the

master plan wa]s clear" that "[a]n overriding goal and objective [wa]s to

minimize conflicts while protecting residential neighborhoods" but "there [wa]s

no goal or objective which could reasonably be used to justify allowing banquet

facilities in residential zones." The report also noted the Township's master plan

indicated "[t]here ha[d] been an ongoing issue of encroachment of incompatible

uses in the Lakewood [i]dustrial [p]ark" and the "[d]evelopment of certain non-

industrial uses that generate a high volume of traffic should be discouraged ."

Plaintiff's planner opined that "[b]anquet facilities [we]re just those types of uses

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which generate high volumes of traffic that the [m]aster [p]lan specifically

indicated [we]re incompatible." His report concluded "the proposed Ordinance

[wa]s not consistent with any element of the . . . Township [m]aster [p]lan."

On November 23, 2022, the Board's administrator sent a memorandum

regarding the Ordinance to the Board's engineer, the Board's planner, the Board's

attorney, and the Board's chairman. The memorandum stated: "Historically, the

Board has considered banquet facilities to be . . . accessory uses to schools,

synagogues, and hotels, and has approved various applications as such ." The

memorandum provided excerpts from the Township's 2017 master plan "for the

Board's consideration in determining consistency with the proposed Ordinance."

The memorandum also included the master plan's land use element addressing

traffic and parking, stating "[t]raffic congestion and a shortage of parking have

been ongoing problems in Lakewood" and these issues could be addressed "in

part, with sound land use planning that promotes reduced reliance on private

vehicles through: compact development footprints, facilitated access to public

transit; provision of local services within walking distance of residential areas;

and, provision of adequate parking for existing and future land uses ."

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The Board continued its consistency review at the November 29, 2022

meeting. The meeting agenda issued in advance of November 29 stated the

Board would consider an "ordinance for review."

At the November 29 meeting, the Board's administrator explained she met

with the Board's planner and the ad hoc committee to "discuss what the

[O]rdinance [wa]s proposing and what the Board's concerns might include." The

Board's chairman stated the ad hoc committee discussed whether the Ordinance

"should . . . only be in nonresidential zones" and "how much parking . . . [wa]s

necessary." The Board's chairman also explained "the industrial park[,] . . . was

built for [the] greater goals of the Township" and he noted that schools are now

located in the industrial park.

After hearing public comments, the Board concluded the Ordinance

"[wa]s consistent with the [m]aster [p]lan" but "urge[d]" the Township to revise

the parking requirements to include "one space to 45 square feet" and to provide

"[a]ll assembly areas . . . be included in the ratio" and "[n]o on street parking

within 100 feet." The Board also suggested "the [Township] should

alternatively consider basing the parking count on gross square footage" of any

catering facility or banquet hall in the zone.

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On December 1, 2022, the Board's attorney emailed the Township's

attorney with the Board's consistency findings regarding the Ordinance. The

email explained the "Board believe[d] that it [wa]s salutary that the [Township]

Committee [wa]s codifying that banquet halls [we]re an accessory use to schools

in Lakewood" and the "Board has, for many years, viewed banquet halls as an

accessory to schools." The email further stated "[t]he Board want[ed] to

emphasize that an amendment to the zoning ordinance imposing conditions and

standards associated with the accessory use of banquet halls must not disturb

existing schools with banquet halls and that their use must be permitted to

continue to be lawful as 'grandfathered.'"

The Board attorney's email also noted the Board's "most significant issue

with accessory banquet uses [wa]s parking." He explained the Board "discussed

possible different alternatives to define the parking criteria from which parking

ratios could be calculated," including "a ratio that would be based upon the gross

square footage of the building, a net square footage of the building, seating

counts, occupancy counts, [and] the net area of the banquet hall itself, etc." The

email further stated "[t]he Board was concerned with banquet halls being present

in strictly residential zones and recommend[ed] that the [Township C]ommittee

adopt criteria and specific overlay areas that would allow and exclude banquet

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halls in specifically identified neighborhoods." The email expressed the Board's

belief that the "[O]rdinance [wa]s consistent with the master plan because it

beg[a]n to regulate a common accessory use that currently has no tailored

associated standards to guide the . . . Board."

The Township's attorney asked if the email from the Board's attorney

constituted the Board's consistency review report or if a more formal report

would be submitted. The Township['s a]ttorney was informed the email

"constitute[d] the . . . [B]oard's report regarding the proposed Ordinance."

On December 7, 2022, plaintiff's attorney emailed the Board's

administrator requesting "any resolution, report, or other documents containing

the findings and recommendations of the . . . Board relative to [the] proposed

Ordinance[']s . . . consistency with the [m]aster [p]lan." The Board's

administrator responded the Board's attorney "communicated directly with the

Township attorney" in an email and plaintiff could obtain a copy of that email

through the Open Public Records Act, N.J.S.A. 47:1A-1 to -13, request. The

administrator confirmed the Board did not adopt a resolution and explained she

"d[id]n't believe the Board ha[d] adopted a resolution for an Ordinance review

before, [or] at least not in the last [ten] years."

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The same day, the Township Committee posted an agenda on the

Township's website for its December 8, 2022 meeting. The agenda included an

amended version of the Ordinance. The Ordinance, as amended, stated:

18-906 I. Public and Private Schools.

In all non-residential zones where schools are permitted

uses (Section 18-903) and the Oak Street Core

Neighborhood Overlay Zone-1 (Section 18-902M),

catering facilities and banquet halls shall continue to be

allowed as accessory uses in the school buildings,

provided the following parking requirements are met:

For the section of the school utilized for catering and

banquet functions (to be known as the [b]anquet [h]all

space, but not including bathrooms, food prep rooms,

and facilities not associated with the [b]anquet [h]all

function, such as guest preparation rooms, etc.) 1.0

parking space shall be required for every 50 square feet

thereof.

The day before the December 8 meeting, plaintiff's attorney submitted

another letter objecting to the revised Ordinance. Plaintiff lodged various

procedural objections, including that the Township Committee could not hold

virtual meetings and a member of the Township Committee had a conflict of

interest due to the member's children attending a private school that "operate[d]

a popular banquet facility" and because the mother of the same member held "a

significant position within the administration at [a] . . . girls' school . . . which

has the oldest banquet hall in town." The letter repeated plaintiff's argument

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that the Ordinance was inconsistent with the Township's master plan and raised

additional objections, including that the Ordinance failed to define catering

facility or banquet hall and lacked any bulk requirements.

The Township Committee considered the Ordinance, as amended, for final

passage at its December 8, 2022 meeting. At the start of the meeting, the

Township's mayor stated:

Ordinance . . . is on for second reading after

referral to the . . . Board pursuant to N.J.S.A. 40:55D-

64 and N.J.S.A. 40:55D-26. The [Township]

Committee has received recommendations from the

Board to make revisions to the original language which

we do not deem to be substantive changes upon the

advice of our attorneys. Thus, we have revised the

[O]rdinance to include the pertinent suggestions.

Those suggestions specifically related to this

[O]rdinance are to recognize banquet halls as an

accessory use in only nonresidential zones, Section 18-

903 of the U[niform] D[evelopment] O[rdinance], and

residential zones which an overlay for schools, which

is the Oak Street Core Neighborhood Overlay Zone

. . . Section 18-902M. The revised [O]rdinance now

contains these revisions.

The other suggestion was to revise the parking

requirement from the originally proposed ordinance.

Various suggestions were proffered by the Board, but

the most prevalent recommendation appears to be the

following: Parking ratio presently provided for at

facilities already being used for banquet halls in town.

That is one space for every [fifty] square f[ee]t of

banquet hall space, not including bathrooms, food prep

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rooms, and facilities not associated with the banquet

hall function. This is now detailed in the revisions to

the proposed [O]rdinance.

Unlike the parking requirements for places of

worship and religious facilities and catering facilities,

Section 18-905, this parking requirement includes

using principal use parking space requirements. This

means that the school parking spaces shall be included

in counting the requirements for the banquet halls. This

is because while some of the other facilities may

actually have concurrent things going on, there will not

be a banquet hall facility going on at the same time that

school is being held, that way those spots will be

available.

....

Our attorneys have advised us that the

requirement expressed in N.J.S.A. 40:55D-26 that the

. . . Board render a report including identification of

any provisions in the proposed [O]rdinance amendment

which are inconsistent with the [m]aster [p]lan and

recommend any revisions to the amendment has been

fulfilled specifically by the Board's finding that this

[O]rdinance amendment is consistent with the master

plan, thus the [Township] Committee has revised the

[O]rdinance accordingly incorporating the pertinent

recommendations.

Upon opening the December 8 meeting for public comment, the mayor

explained there would be a four-minute time limit on comments. As part of his

four-minutes, plaintiff's attorney raised objections to the Ordinance consistent

with the objections noted in his December 7, 2022 letter to the Township

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Committee. Plaintiff's planner also raised objections, arguing the amended

Ordinance was inconsistent with the Township's master plan. Plaintiff's planner

further cited "substantial change[s]" between the original and amended

Ordinance because "the ratio of parking is different" and the amended Ordinance

"contains a retroactive provision indicating that schools shall continue to be

allowed to have catering and banquet facilities."

After considering the public comments, the Township Committee adopted

the amended Ordinance. On December 14, 2022, The Star-Ledger published a

notice advising the Ordinance was "passed and adopted" at the Township

Committee's December 8 meeting.

On January 25, 2023, plaintiff filed a fifteen-count complaint in lieu of

prerogative writs and an order to show cause (OTSC) asserting procedural and

substantive challenges to the Ordinance. After the judge denied plaintiff's

OTSC, the Board filed an answer.

Plaintiff subsequently moved to amend the complaint, which the judge

granted. In its amended complaint, plaintiff alleged: the Township Committee's

virtual meetings were impermissible under the OPMA (count one); a member of

the Township Committee was prohibited from voting on the Ordinance and,

therefore, the Township Committee lacked the majority necessary to vote on

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final passage of the Ordinance (counts two and three); the public notice for the

Township Committee's December 8, 2022 meeting was deficient due to

substantial changes to the Ordinance (count four); the Township Committee

violated the County Planning Board notice provisions, N.J.S.A. 40:55D-15(b)

and -16 (count five); the Township Committee failed to provide notice to

plaintiff of the amended Ordinance in violation of N.J.S.A. 40:55D-62.1 (count

six); the four-minute speaking time limit at the Township Committee's

December 8, 2022 meeting was arbitrary, capricious, and unreasonable (count

seven); the Board failed to give the public adequate notice of the November 15

and November 29, 2022 meetings under the OPMA (count eight); the Board

failed to conduct a master plan consistency review of the Ordinance under

N.J.S.A. 40:55D-26 (count nine); the email provided by the Board's attorney did

not constitute a planning board report under N.J.S.A. 40:55D-26 and, even if it

did, the Township Committee violated N.J.S.A. 40:55D-62 and -26 by failing to

address the inconsistency between the Ordinance and the master plan (counts

ten(a) and ten(b)); the Board's reliance on a report from the Board's

administrator rendered the Board's determination arbitrary, capricious, and

unreasonable (count eleven); the Township's attorney tainted the record at the

Township Committee's December 8, 2022 meeting (count twelve); the Township

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Committee did not review a report from the Board as required under N.J.S.A.

40:55D-26 (count thirteen); the amended Ordinance was inconsistent with the

Township's master plan (count fourteen); the amended Ordinance created a

conditional use ordinance in violation of N.J.S.A. 40:55D-67 (count fifteen); the

Board failed to reorganize properly for the 2022 year under N.J.S.A. 10:4-18

and, therefore, lacked authority to conduct its November 15 and November 29,

2022 meetings (count sixteen); and the Township Committee also violated

N.J.S.A. 10:4-8 and -18, rendering its October 20, 2022 and December 8, 2022

meetings ultra vires (count seventeen). The amended complaint added new

claims only as to the Township Committee. The Township Committee answered

the amended complaint.

On August 18, 2023, plaintiff moved for summary judgment on counts

one, four, five, six, eight, sixteen, and seventeen of the amended complaint . A

month later, the Township Committee cross-moved for summary judgment on

counts one, four, five, six, and seventeen of the amended complaint. The Board

opposed plaintiff's motion for summary judgment and cross-moved for summary

judgment on count sixteen of the amended complaint.

In an October 17, 2023 order with an attached written decision, the judge

granted partial summary judgment to the Board on counts eight and sixteen of

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the amended complaint, dismissing those counts with prejudice. Additionally,

the judge granted partial summary judgment to the Township Committee on

counts one, four, five, and six of the amended complaint, dismissing those

counts with prejudice. The judge denied plaintiff's motion for summary

judgment.

Plaintiff moved for reconsideration of the October 17, 2023 order granting

partial summary judgment to the Township Committee and moved to expand the

record to allow further discovery. The judge denied plaintiff's motion in its

entirety.

On November 16, 2023, the Township Committee moved for summary

judgment on count seventeen of the amended complaint. After considering the

parties' arguments and written submissions the judge granted summary judgment

on January 19, 2024, and dismissed count seventeen with prejudice.

The judge conducted a bench trial on the remaining counts of the amended

complaint based solely on the documentary record. In a July 9, 2024 final

judgment and accompanying written statement of reasons, the judge dismissed

plaintiff's amended complaint in its entirety with prejudice.

On appeal, plaintiff raises a litany of arguments. Plaintiff contends: the

Board and Township Committee violated N.J.S.A. 10:4-18 in reorganizing for

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the 2022 year and, therefore, its proceedings related to the consistency review

and adoption of the Ordinance were ultra vires; the notice provisions related to

adoption of the Ordinance failed to comply with the Municipal Land Use Law

(MLUL), N.J.S.A. 40:55D-1 to -171; the adoption of the Ordinance failed to

comply with the requirements of the OPMA; the judge erred in denying its

motion for reconsideration of the October 17, 2023 order and motion to extend

discovery; the Ordinance was inconsistent with the Township's master plan; the

adoption of the Ordinance was arbitrary, capricious, and unreasonable; and a

member of the Township Committee had a disqualifying conflict of interest

rendering adoption of the Ordinance invalid. We reject these arguments.

We begin with plaintiff's arguments regarding the summary judgment

dismissal of various counts in its amended complaint against the Township

Committee and the Board.

In count sixteen, plaintiff alleged the Board violated the notice provisions

of N.J.S.A. 10:4-18 during its 2022 reorganization. The judge disagreed, finding

the Board "voted on [its] 2022 calendar at the November 23, 2021, public

meeting" and "[t]he annual notice generated from that meeting was published in

two newspapers on December 4 and December 7 of 2021."

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The judge found that "to the extent plaintiff[] challenge[d] the Board's

failure to properly reorganize for the 2022 term pursuant to N.J.S.A. 10:4 -18

because it was the product of violations of the OPMA, [its] complaint was

untimely." Citing Edison Board of Education v. Zoning Board of Adjustment

of Edison, 464 N.J. Super. 298, 308 (App. Div. 2020), the judge explained a

"complaint alleging an OPMA violation must be filed within forty-five days

'after the action sought to be voided has been made public[.]'" (quoting N.J.S.A.

10:4-15(a)).

Despite plaintiff's assertion that it only became aware of the alleged

OPMA violation on March 29, 2023, and immediately sought to amend its

complaint, the judge found the claim fell "well outside the [forty-five] day time

limit." The judge further found "there was sufficient public notice for . . .

plaintiff[] to be aware of and then challenge the Board's alleged failure to

comply with OPMA in a timely fashion" because "[p]laintiff was surely aware

of the meetings in November and constructively aware of the lack of notices

within seven days of the January 4, 2022, re-organization hearing and the

Board's failure to re-adopt the 2022 calendar." Because "[t]he filing of count

sixteen [wa]s beyond [forty-five] days of the Board's review and

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recommendations as to the Ordinance" the judge dismissed that count with

prejudice.

In count eight, plaintiff alleged the Board failed to provide adequate notice

in its agendas for the November 15 and November 29, 2022 meetings because

the agendas simply stated "ordinance for review." The judge determined "the

notice was sufficient" because it "provided notice that official action would be

taken as to the review of an ordinance." The judge explained that "even if the

Board's actions did not comply strictly with the statute, it was not voidable due

to the protections provided in N.J.S.A. 10:4-15(a)." The judge concluded the

Ordinance "was published and available before the [Township] Committee

readings when it was referred to the Board" and "[t]here [wa]s no indication

anyone was unaware of the actions." Therefore, the judge dismissed count eight

of plaintiff's amended complaint with prejudice.

In count four, plaintiff alleged the Township Committee's public notices

for the second reading of the Ordinance were deficient due to substantial

changes to the Ordinance as amended. In rejecting this argument, the judge

found "the amendment was neither substantive[] nor was plaintiff aggrieved by

the change" because the amended Ordinance "reduced the number of zones to

which the Ordinance was applicable" and "continued the determination that the

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catering facilities and banquet halls shall continue to be allowed as accessory

uses provided the parking requirements are met."

The judge also rejected plaintiff's argument that "the impact of the

amendment in effect, ma[d]e[]" banquet halls as accessory uses to schools in

non-residential zones "retroactive by recognizing that they are currently seen as

accessory which shall continue" because "[t]he discussion by the . . . Board in

reviewing the Ordinance referred to the use being historically viewed by them

as an accessory use." Because "schools [we]re permitted uses in the M-1 Zone,"

the judge concluded the amended Ordinance "clarifying and permitting banquet

facilities as an accessory to schools does not have a 'substantive effect' on the

plaintiff." Thus, the judge dismissed count four of the amended complaint with

prejudice.

In count five, plaintiff alleged the Township Committee violated the

County Planning Board notice provisions, N.J.S.A. 40:55-15(b). Because the

judge "found that no substantive changes were made in amending the

Ordinance," he concluded "no further notice was required." Thus, the judge

dismissed count five with prejudice.

In count six, plaintiff alleged the Township Committee failed to provide

personal notice to plaintiff of the amended ordinance, as required by N.J.S.A.

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40:55D-62.1, arguing the amended Ordinance constituted a zoning classification

change. In rejecting this argument, the judge concluded the Ordinance did not

"fundamentally alter[]" the M-1 industrial zone. The judge noted the Board

"recognized that it ha[d] historically found banquet facilities to be an accessory

use to a school, as a simcha hall." Because "schools [we]re permitted uses in

the M-1 Zone," the judge held that "clarifying and permitting banquet facilities

as an accessory to schools d[id] not have a 'substantive effect' on the zone and

therefore, d[id] not change the classification nor require personal notice."

Therefore, the judge dismissed count six of the amended complaint with

prejudice.

In count one, plaintiff alleged the Township Committee lacked authority

under the OPMA to hold virtual meetings. Citing N.J.S.A. 10:4-8(b), the judge

found the plain language of the OPMA defined meetings as "any gathering

'whether corporeal or by means of communication equipment.'" The judge

concluded, "[w]here the OPMA definition of meeting includes appearance by

'communication equipment' the Board was simply complying with the law and

employing technology." Thus, the judge dismissed count one of the amended

complaint with prejudice.

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However, the judge denied, without prejudice, summary judgment as to

count seventeen. In count seventeen, plaintiff alleged the Township Committee

violated the notice provisions of N.J.S.A. 10:4-8 and -18 by only publishing its

annual notice for its 2022 meetings in The Star-Ledger instead of two papers

and failing to notice the October 20, 2022 or the December 8, 2022 meetings as

special meetings. The judge concluded there were "issues of material fact that

prevent[ed] the [c]ourt from deciding the issue." The judge explained that

"[m]ore evidence [wa]s required for the [c]ourt to determine this issue."

On November 16, 2023, the Township Committee moved for summary

judgment on count seventeen of plaintiff's amended complaint. In granting

summary judgment on this count, the judge found "the requirement to file a

prerogative writ[s] must comply with the rules of the prerogative writ[s]1 and

the rules of the [OPMA which] establish[ed] a [forty-five]-day period from the

event being challenged." As the judge explained, "[a]ny challenge to a

deficiency in the publication of an annual notice was required to have been made

and to have been filed [forty-five] days from January 10th, 2022 or by February

24th, 2022." Plaintiff's filed its amended complaint challenging the published

notice in March 2023. Thus, the judge held this claim was time barred.

1

Rule 4:69-6(b) governs actions in lieu of prerogative writs.

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Additionally, the judge concluded plaintiff failed to demonstrate any interest of

justice for a relaxation of the forty-five-day requirement under Rule 4:69-6(c)

and dismissed count seventeen of the amended complaint with prejudice.

We review orders granting summary judgment de novo, applying the same

standard as the motion judge. Samolyk v. Berthe, 251 N.J. 73, 78 (2022). Under

that standard, we must "determine whether 'the pleadings, depositions, answers

to interrogatories and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact challenged and that

the moving party is entitled to a judgment or order as a matter of law.'" Branch

v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (quoting R. 4:46-2(c)). "To

decide whether a genuine issue of material fact exists, the trial court must 'draw[]

all legitimate inferences from the facts in favor of the non-moving party.'"

Friedman v. Martinez, 242 N.J. 449, 472 (2020) (alteration in original) (quoting

Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)). "An issue of fact is

genuine only if . . . the evidence submitted by the parties on the motion, together

with all legitimate inferences therefrom favoring the non-moving party, would

require submission of the issue to the trier of fact." R. 4:46-2(c). "To the extent

that the grant or denial of summary judgment is based on an issue of law,

[appellate courts] owe no deference to an interpretation of law that flows from

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27

established facts." State v. Perini Corp., 221 N.J. 412, 425 (2015) (citing Town

of Kearny v. Brandt, 214 N.J. 76, 92 (2013)).

Similarly, our review of a trial court's interpretation of a statute, such as

the OPMA, is de novo. McGovern v. Rutgers, 211 N.J. 94, 108 (2012). "[W]e

do not owe any deference to the interpretations placed on the various provisions

of OPMA by . . . the trial court." Ibid. Rather, our role regarding statutory

interpretation "is to determine and effectuate the Legislature's intent." Ibid.

(quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553 (2009)). "If the

language is clear, our task is to apply that language to the situation that confronts

us." Ibid. (citing State v. Shelley, 205 N.J. 320, 323 (2011)).

Plaintiff contends the judge erred in granting summary judgment as to

counts one, four, five, six, eight, sixteen, and seventeen of the amended

complaint. We address the summary judgment dismissal of each of these counts.

In count sixteen, plaintiff claims the Board's 2022 reorganization violated

N.J.S.A. 10:4-18. As a result, plaintiff contends the Board lacked authority to

hold its November 15 and November 29, 2022 meetings.

The OPMA provides:

At least once each year, within [seven] days following

the annual organization or reorganization meeting of a

public body, or if there be no such organization or

reorganization meeting in the year, then by not later

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than January 10 of such year, every public body shall

post and maintain posted throughout the year in the

place described in [N.J.S.A. 10:4-8(d)(1)], mail to the

newspapers described in [N.J.S.A. 10:4-8(d)(2)],

submit to the persons described in [N.J.S.A. 10:4-

8(d)(3)], for the purpose of public inspection a schedule

of the regular meetings of the public body to be held

during the succeeding year. Such schedule shall

contain the location of each meeting to the extent it is

known, and the time and date of each meeting. In the

event that such schedule is thereafter revised, the public

body, within [seven] days following such revision, shall

post, mail and submit such revision in the manner

described above.

[N.J.S.A. 10:4-18.]

Under the OPMA, "[a]ny action taken by a public body at a meeting which

does not conform with the provisions of this act shall be voidable in a proceeding

in lieu of prerogative writ[s] . . . , which proceeding may be brought by any

person within [forty-five] days after the action sought to be voided has been

made public." N.J.S.A. 10:4-15(a); see also Mason v. City of Hoboken, 196 N.J.

51, 69 (2008) (noting "actions taken at a meeting in violation of the [OPMA]

are to be challenged within [forty-five] days in a proceeding in lieu of

prerogative writs." (citing N.J.S.A. 10:4-15(a))).

Under Rule 4:69-6(a), "[n]o action in lieu of prerogative writs shall be

commenced later than [forty-five] days after the accrual of the right to review,

hearing or relief claimed, except as provided by paragraph (b) of this rule." Rule

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4:69-6(b)(3) provides "[n]o action in lieu of prerogative writs shall be

commenced . . . to review a determination of a planning board . . . after [forty-

five] days from the publication of a notice once in the official newspaper of the

municipality or a newspaper of general circulation in the municipality." A court

may enlarge the forty-five-day period "where it is manifest that the interest of

justice so requires." R. 4:69-6(c). There are three recognized exceptions

allowing for enlargement of the time period under Rule 4:69-6(a) based on the

interest of justice. The exceptions are "cases involving (1) important and novel

constitutional questions; (2) informal or [e]x parte determinations of legal

questions by administrative officials; and (3) important public rather than

private interests which require adjudication or clarification." Brunetti v.

Borough of New Milford, 68 N.J. 576, 586 (1975) (footnotes omitted).

Plaintiff argues the Board's November 15 and November 29, 2022

meetings were void because the Board allegedly failed to properly reorganize

for the 2022 year. Based on those allegations, plaintiff had forty-five days from

those dates to file its action in lieu of prerogative writs. However, plaintiff first

asserted this claim in its amended complaint filed on July 6, 2023. Thus,

plaintiff's allegations in count sixteen of the amended complaint were filed well

beyond the forty-five-day time period.

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Nor is there anything in the record demonstrating this case qualifies for

an enlargement of the forty-five-day requirement under Rule 4:69-6(c). Plaintiff

failed to articulate any basis for enlarging the forty-five-day period. Because

the allegations in count sixteen of plaintiff's amended complaint were untimely,

the judge properly granted summary judgment.

In count seventeen, plaintiff alleged the Township Committee violated

N.J.S.A. 10:4-8 and N.J.S.A. 10:4-18 by failing to properly notice the Township

Committee's October 20 and December 8, 2022 meetings. Plaintiff claims those

meetings were ultra vires and the judge erred in dismissing count seventeen.

As defined under the OPMA:

"Adequate notice" means written advance notice of at

least [forty-eight] hours, giving the time, date, location

and, to the extent known, the agenda of any regular,

special or rescheduled meeting, which notice shall

accurately state whether formal action may or may not

be taken and which shall be (1) prominently posted in

at least one public place reserved for such or similar

announcements, (2) mailed, telephoned, telegrammed,

or hand delivered to at least two newspapers . . .

designated by the public body . . . because they have

the greatest likelihood of informing the public . . . one

of which shall be the official newspaper . . . and (3)

filed with the clerk of the municipality. . . . Where

annual notice or revisions thereof in compliance with

[N.J.S.A. 10:4-18] set forth the location of any meeting,

no further notice shall be required for such meeting.

[N.J.S.A. 10:4-8(d).]

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As we previously noted, N.J.S.A. 10:4-18 requires public bodies to annually

publish "a schedule of the regular meetings of the public body to be held during

the succeeding year."

We are satisfied the judge properly dismissed count seventeen as untimely

under Rule 4:69-6 and N.J.S.A. 10:4-15(a) because that count was filed more

than forty-five days after the January 5, 2022 publication of the Township

Committee's January 2022 reorganization. Plaintiff's July 6, 2023 amended

complaint was filed well beyond the forty-five-day time period for challenging

the Township Committee's January 5, 2022 action.

Further, we reject plaintiff's assertion the annual notice for the Township

Committee's 2022 reorganization failed to comply with N.J.S.A. 10:4-18

because the notice was not sent to two newspapers. The Township Committee

held its 2022 reorganization meeting on January 3, 2022. The Township's clerk

certified she sent the required annual notice "to both The Star-Ledger and the

Asbury Park Press" and "posted [the notice] in the [Township's] municipal

building." Thus, we are satisfied the Township Committee complied with the

OPMA notice requirements and no further notice was required for the Township

Committee's October 20 and December 8, 2022 meetings.

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In count four, plaintiff alleges the published notice for the Township's

December 8, 2022 meeting failed to comply with N.J.S.A. 40:55D-63 and

N.J.S.A. 40:49-2 to -2.1 because the amended Ordinance contained "substantial

revisions" from the initial Ordinance.

As first introduced, the Ordinance provided that catering facilities and

banquet halls would be permitted accessory uses in all zones where schools are

permitted provided the Ordinance's parking requirements were satisfied. The

amended Ordinance stated that catering facilities and banquet halls would be

permitted as accessory uses in all non-residential zones where schools were

permitted uses provided the Ordinance's parking requirements were met.

Additionally, the amended Ordinance enhanced the parking requirement by

requiring one parking space for every fifty square feet of the section of the

school utilized for catering and banquet functions.

At the Township Committee's December 8, 2022 meeting, the amended

Ordinance was considered for a second reading. At that meeting, the mayor

explained the Township Committee received recommendations from the Board

with suggested revisions to the original Ordinance. The mayor stated the

Township Committee did not consider the recommended revisions "to be

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33

substantive changes." Therefore, the Township Committee "include[d] the

pertinent suggestions" recommended by the Board in the amended Ordinance.

N.J.S.A. 40:49-2, which addresses the passage of municipal ordinances,

provides:

a. Every ordinance after being introduced and having

passed a first reading . . . shall be published in its

entirety or by title or by title and summary at least once

in a newspaper published and circulated in the

municipality . . . together with a notice of the

introduction thereof, the time and place when and

where it will be further considered for final passage.

....

c. Upon the opening of the hearing, the ordinance shall

be given a second reading, which reading may be by

title, and thereafter, it may be passed with or without

amendments, or rejected. . . . If any amendment be

adopted, substantially altering the substance of the

ordinance, the ordinance as so amended shall not be

finally adopted until at least one week thereafter . . .

and shall be published in its entirety or by title or by

title and summary . . . and the time and place when and

where the amended ordinance will be further

considered for final passage, at least two days prior to

the time so fixed. At the time and place so fixed . . .

the governing body may proceed to pass the ordinance,

as amended, or again amend it in the same manner.

N.J.S.A. 40:49-2.1(c) similarly provides:

If any amendment be adopted to any proposed

ordinance substantially altering the substance of the

proposed ordinance, there shall be caused to be

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published a notice of the title of the ordinance, the

introduction and time and place that the amended

ordinance will be further considered and a summary of

the objectives or provisions of the amendment or

amendments, which notice shall be published at least

[two] days prior to the time so fixed therefor in

accordance with [N.J.S.A. 40:49-2(c)].

Whether an amendment substantially alters the substance of a proposed

ordinance "involves a mixed question of law and fact." Wollen v. Borough of

Fort Lee, 27 N.J. 408, 420 (1958). "The words [of the amendment] are to be

assessed in the context of the provision of which they are a part and the basic

policy of the statute." Ibid. To demonstrate an amendment has substantially

altered the substance of the original ordinance, a plaintiff must show that it "was

of such legally consequential materiality in its contributive relation to the

substantive body of the ordinance . . . which essentially altered the manifest

objective intent and the materiality of the ordinance." Manning v. Borough of

Paramus, 37 N.J. Super. 574, 581 (App. Div. 1955).

The purpose of N.J.S.A. 40:49-2 "is to [e]nsure that the public will be

apprised of the proposed ordinance (or amendment) prior to its final passage in

order that objections may be fully and freely raised and, if persuasive, honored."

LaRue v. Twp. E. Brunswick, 68 N.J. Super. 435, 451 (App. Div. 1961). If an

amendment "imposes no burden on plaintiffs" the amended ordinance will not

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be considered a substantial alteration necessitating republication. Wollen, 27

N.J. at 420-21. Similarly, where an amended ordinance's "proposed effect was

an additional gratuity and not an enlarged restraint," the amendment will not be

deemed substantial. Manning, 37 N.J. Super. at 580-81.

Here, we are satisfied the amendment did not substantially alter the

Ordinance to require compliance with N.J.S.A. 40:49-2 and

-2.1. One of the changes incorporated in the amended Ordinance limited the

Ordinance to non-residential zones that allow schools, rather than all zones that

allow schools. The other change in the amended Ordinance required an increase

in the number of parking spaces. By limiting the Ordinance to non-residential

zones, the amendment is more restrictive because it applies to fewer zones. By

increasing the number of required parking spaces, the amended Ordinance

limited traffic congestion and off-street parking. Neither of the changes in the

amended Ordinance altered the enactment's expressed intent to permit banquet

halls and catering facilities as accessory uses to schools.

Here, the focus of public comments questioned the sufficiency of the

proposed parking requirements. The amended Ordinance increased the parking

for catering facilities and banquet halls associated with schools. The increased

parking requirement was "an additional gratuity" for municipal residents, as well

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as plaintiff, rather than an impermissible "enlarged restraint." Manning, 37 N.J.

Super. at 580.

We agree with the judge that plaintiff was not aggrieved by the changes

incorporated in the amended Ordinance. Prior to the adoption of the Ordinance,

plaintiff's property, located in the M-1 industrial zone, allowed schools as

permitted uses. See Lakewood, N.J., Code § 18-903(M)(1)(m). The amended

language did not change the Ordinance's impact on plaintiff. In fact, the

amended Ordinance benefited plaintiff by requiring more parking for banquet

halls and catering facilities associated with schools and expressly limiting on-

street and overflow parking which could impact businesses within the industrial

zone. We are satisfied the amended Ordinance did not additionally burden

plaintiff in a way that substantially altered the Ordinance.

In count five, plaintiff alleged the Township Committee violated the

County Planning Board notice provision under N.J.S.A. 40:55D-15(b) and

N.J.S.A. 40:55D-16. Therefore, plaintiff claimed the judge erred in dismissing

that count.

The Township's clerk certified she sent the Ordinance to the Ocean County

Planning Board on October 28, 2022. Additionally, an October 28, 2022 email

from the clerk's office transmitted the Ordinance to the Ocean County Planning

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Board on that date. The email stated the "[O]rdinance was [i]ntroduced at the

Township Committee meeting [o]n October 20, 2022" and "[t]he second hearing

and public comment on said [O]rdinance is scheduled for December 8, 2022."

The Township's clerk further certified the Ordinance "as adopted was submitted

to the Ocean County Planning Board on December 12, 2022 in accordance with

N.J.S.A. 40:55D-16." The clerk also sent a December 12 email to the Ocean

County Planning Board attaching the Ordinance as adopted.

N.J.S.A. 40:55D-15(b) states:

Notice by personal service, certified mail, or e-mail

with confirmation that the e-mail was delivered, shall

be made to the county planning board of (1) all hearings

on the adoption, revision or amendment of any

development regulation at least [ten] days prior to the

date of the hearing.

....

For the purposes of this section, proof that an e-mail

was sent to the correct e-mail address within the

required time frame shall constitute a rebuttable

presumption that the e-mail was delivered.

Plaintiff argues the Township Committee violated N.J.S.A. 40:55D-15(b)

because it only sent the original Ordinance to the Ocean County Planning Board

and not the amended Ordinance. The Township Committee first introduced the

Ordinance at its October 20, 2022 meeting and stated the matter would be

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38

considered for adoption at the Township Committee's December 8, 2022

meeting after hearing public comment and considering any revisions or

amendments. On October 28, 2022, the Township clerk's office emailed notice

to the Ocean County Planning Board, advising the Township would hold a

"hearing[] on the adoption, revision, or amendment" of the Ordinance of

December 8. N.J.S.A. 40:55D-15(b). The October 28 date was "at least [ten]

days prior" to the December 8, 2022 meeting when the Township Committee

was scheduled to consider adopting the Ordinance. Ibid.

We are satisfied the Township Committee complied with N.J.S.A.

40:55D-15(b). It also complied with N.J.S.A. 40:55D-16 by sending the

amended Ordinance as adopted to the Ocean County Planning Board on

December 12, 2022. Because there was unrefuted evidence in the record

supporting the Township Committee's compliance with the County Planning

Board notice provisions, the judge properly dismissed that count.

In count six, plaintiff argues the Township Committee violated N.J.S.A.

40:55D-62.1 by failing to provide plaintiff with personal notice of the December

8, 2022 meeting because the amended Ordinance constitutes a zoning

classification change.

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"N.J.S.A. 40:55D-62.1 directs that all property owners within a zoning

district shall receive personal notice if the municipal body seeks to change the

classification or boundaries of a zoning district." Robert James Pacilli Homes

LLC v. Twp. of Woolwich, 394 N.J. Super. 319, 329 (App. Div. 2007). The

statute provides:

Notice of a hearing on an amendment to the zoning

ordinance proposing a change to the classification or

boundaries of a zoning district, exclusive of

classification or boundary changes recommended in a

periodic general reexamination of the master plan by

the planning board . . . shall be given at least [ten] days

prior to the hearing by the municipal clerk to the owners

of all real property as shown on the current tax

duplicates, located, in the case of a classification

change, within the district and within the State within

200 feet in all directions of the boundaries of the

district.

[N.J.S.A. 40:55D-62.1.]

A "classification," while not defined in the MLUL, "refers to the use

permitted in a zoning district, such as residential, commercial, or industrial, as

well as sub-categories within those broader uses." Robert James, 394 N.J.

Super. at 330-31. A change of classification in a zoning district occurs where a

"change in any of these broad categories and sub-categories has the capacity to

fundamentally alter the character of a zoning district." Id. at 331. "[T]he type

of notice to be provided on the occasion of a proposed amendment to a zoning

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ordinance should focus on the substantive effect of the amendment rather than

the appellation given to the zone." Id. at 332. "[T]he test is not the number of

changes but the substance of the changes." Id. at 333.

Plaintiff asserts permitting banquet halls and catering facilities as

accessory uses to schools in the Township's M-1 industrial zone constitutes a

classification change to that zone. The M-1 industrial zone is not limited to

industrial uses. The M-1 industrial zone permits industrial uses and permits uses

such as "[p]ublic and private schools"; "[h]otels and motels"; "[f]acilities for on-

site provision of health and human services, including spas, gyms, health clubs,

and like facilities"; and "[r]estaurants." Lakewood, N.J., Code § 18-

903(M)(1)(m), (r), (t), (w). Banquet halls and catering facilities serve food and

host events and, therefore, are similar to restaurants, hotels, and motels. Here,

the Ordinance which allows banquet halls as permitted accessory uses to schools

does not "fundamentally alter the character" of the M-1 industrial zone. Robert

James, 394 N.J. Super. at 331.

Moreover, public and private schools were principal permitted uses in the

M-1 industrial zone prior to enactment of the Ordinance. Lakewood, N.J., Code

§ 18-903 (M)(1)(m). The Board historically recognized banquet halls and

catering facilities as accessory uses to schools and previously approved such

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uses through variance applications. The Ordinance allowing banquet halls and

catering facilities as accessory uses to schools in the M-1 industrial zone does

not substantively change the character of the zone requiring notice under

N.J.S.A. 40:55D-62.1. Therefore, the judge properly dismissed this count.

In count eight, plaintiff alleges the Board failed to provide adequate notice

of its November 15 and November 29, 2022 meetings under N.J.S.A. 10:4-9. It

claims the meeting agendas simply stating "ordinance for review" lacked the

required specificity. Therefore, plaintiff argues the judge erred in granting

summary judgment on that count.

"No public body shall hold a meeting unless adequate notice thereof has

been provided to the public." N.J.S.A. 10:4-9(a). Adequate notice under

N.J.S.A. 10:4-8(d) means "written advance notice of at least [forty-eight] hours,

giving the time, date, location and, to the extent known, the agenda of any

regular, special or rescheduled meeting." However, where the governing body

provides annual notice of its meetings, the additional forty-eight-hour notice of

a regularly scheduled meeting is not required. Ibid.; see also Witt v. Gloucester

Cnty. Bd. of Chosen Freeholders, 94 N.J. 422, 433 (1983).

Plaintiff argues the Board's November 15 and 29, 2022 meeting agendas

were insufficient or lacked sufficient specificity to inform the public of the

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42

matters to be discussed. However, the Board published notice of its 2022 annual

meetings in two newspapers. The notice included the November 15 and

November 29, 2022 meetings. Because the Board provided annual notice of its

2022 meeting dates, it did not have to publish agendas for either of these

meetings. Ibid.; see also Crifasi v. Governing Body of Oakland, 156 N.J. Super.

182, 186 (App. Div. 1978) ("[T]here is no requirement in the [OPMA] that an

agenda need be published prior to a regularly scheduled meeting.").

Importantly, it is undisputed plaintiff attended both meetings. It is evident

plaintiff had ample notice of these meetings and the issues to be addressed, as

plaintiff attended with its planning expert and a court reporter. Additionally,

members of the public offered comments at these meetings, further evidencing

the public's awareness of the issues to be discussed. Thus, we are satisfied the

judge properly dismissed this count.

In count one, plaintiff alleges the Township Committee lacked the

authority to conduct virtual meetings under the OPMA. Therefore, plaintiff

argues the judge erred in granting summary judgment dismissal of this count.

The Township Committee's October 20 and December 8, 2022 meetings

were held virtually through a secure web conferencing service. Members of the

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public could attend these meetings via a video link or by telephone. The OPMA

defines "[m]eeting" as

any gathering whether corporeal or by means of

communication equipment, which is attended by, or

open to, all of the members of a public body, held with

the intent, on the part of the members of the body

present, to discuss or act as a unit upon the specific

public business of that body.

[N.J.S.A. 10:4-8(b).]

We consider the plain language of a statute to interpret its meaning and

accord statutory language its ordinary meaning to effectuate its intent.

McGovern, 211 N.J. at 108. The plain language of N.J.S.A. 10:4-8(b) permits

meetings "by means of communication equipment." Plaintiff does not dispute

that the secure web conferencing service constitutes a "means of communication

equipment." N.J.S.A. 10:4-8(b). The OPMA expressly permits such a meeting

format. Therefore, the Township Committee's meetings held through a web

platform did not violate the statute. Consequently, we are satisfied the judge

properly granted summary judgment dismissal of that count.

We next address plaintiff's argument that the judge erred in denying its

motion for reconsideration and denying its request to extend discovery. Plaintiff

sought to expand discovery to explore a Township Committee member's alleged

conflict of interest, to introduce a report authored by its expert planner, and to

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obtain discovery related to the Township Committee's transmittal of its 2022

annual meeting notice. We disagree.

In rejecting the motion for reconsideration, the judge stated he was

"satisfied that [his] written decision [on summary judgment] sufficiently

addressed all the issues in the [c]ourt's view" and did not "believe

reconsideration [wa]s in the interest of justice based on what [he] heard."

Regarding the extension of discovery on the purported conflict of interest, the

judge explained the issue was "a legal inquiry that should be determined by the

[c]ourt without the need for depositions." The judge found the deposition of a

particular Township Committee member would be "nothing more . . . than a

fishing expedition." The judge further found plaintiff had an opportunity to

submit the professional planner's expert report during the original discovery

period but failed to do so. Additionally, the judge stated he would "hear

testimony if necessary" on the issue of the Township Committee's 2022 annual

notice.

We review a trial judge's decision on a motion for reconsideration for

abuse of discretion. Branch, 244 N.J. at 582. "When examining a trial court's

exercise of discretionary authority, we reverse only when the exercise of

discretion was 'manifestly unjust' under the circumstances." Newark Morning

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Ledger Co. v. N.J. Sports & Exposition Auth., 423 N.J. Super. 140, 174 (App.

Div. 2011) (quoting Union Cnty. Improvement Auth. v. Artaki, LLC, 392 N.J.

Super. 141, 149 (App. Div. 2007)).

Reconsideration requires a party demonstrate either the court "expressed

its decision based upon a palpably incorrect or irrational basis" or the court "did

not consider, or failed to appreciate the significance of the probative, competent

evidence." Triffin v. SHS Group, LLC, 466 N.J. Super. 460, 466 (App. Div.

2021) (quoting Cummings v. Bahr, 295 N.J. Super. 374, 387 (App. Div. 1996)).

"A litigant should not seek reconsideration merely because of dissatisfaction

with a decision of the [c]ourt." Capital Finance Co. of Delaware Valley, Inc. v.

Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008) (alteration in original)

(quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).

Before this court, plaintiff repeats the same arguments in support of its

motion for reconsideration. However, plaintiff fails to demonstrate why the

judge rendered an incorrect decision. Nor does plaintiff offer any new

information not previously available or any case law warranting reconsideration.

Thus, the judge did not abuse his discretion in denying reconsideration.

We also reject plaintiff's arguments regarding the judge's denial of its

motion to expand discovery. "An appellate court applies 'an abuse of discretion

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standard to decisions made by [the] trial courts relating to matters of discovery.'"

C.A. ex. rel. Applegrad v. Bentolila, 219 N.J. 449, 459 (2014) (alteration in

original) (quoting Pomerantz Paper Corp. v. New Comty. Corp., 207 N.J. 344,

371 (2011)). We "generally defer to a trial court's disposition of discovery

matters unless the court has abused its discretion or its determination is based

on a mistaken understanding of the applicable law." Pomerantz, 207 N.J. at 371

(quoting Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div. 2005)).

Regarding its argument to expand the record to depose the Township

Committee member regarding an alleged conflict of interest, plaintiff only raised

the issue after filing motions for summary judgment and after the scheduling of

a trial date. Plaintiff fails to explain why it was unable to depose the committee

member earlier or why that individual's deposition was essential to the

disposition of the case. We are satisfied the judge did not abuse his discretion

in denying the motion to extend discovery.

Regarding plaintiff's motion to expand discovery to submit an expert

planning report and additional discovery regarding the Township Committee's

2022 annual notice, plaintiff fails to brief these issues on appeal. Thus, the

issues are waived. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App.

Div. 2011) ("An issue not briefed on appeal is deemed waived.")

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We next address plaintiff's argument that the judge erred in dismissing the

remaining counts of its amended complaint following a bench trial. We

disagree.

On May 21, 2024, the judge held a trial on the remaining counts of

plaintiff's amended complaint based on the documentary record. In a July 9,

2024 final judgment and accompanying written decision, the judge dismissed

the remaining counts of plaintiff's amended complaint with prejudice.

The judge's written decision grouped plaintiff's remaining claims as

follows: alleged conflicts of interest of a committee member (counts two and

three); challenge to the Ordinance's substance (counts fourteen and fifteen);

challenge to the consistency review conducted by the Board and considered by

the Township Committee (counts nine, ten, eleven, and thirteen); and challenge

to the procedures for conducting the meetings (counts seven and twelve).

In rejecting plaintiff's arguments alleging a committee member's conflict

of interest, the judge concluded plaintiff failed to show any "actionable

conflict." The judge found "[t]he purported conflicts alleged by . . . [p]laintiff

[we]re too speculative to constitute a disqualifying interest and required

speculative findings as to issues affecting non-parties" and "[t]he purported

interests cannot be quantified without rash speculation."

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The judge rejected plaintiff's argument that the Township Committee's

four-minute time limit for public comment at its December 8, 2022, meeting was

arbitrary, capricious, or unreasonable and violated the OPMA. The judge

concluded the time limit "did not regulate the content of the comments" and "did

not limit the content of the communication." The judge also found plaintiff

submitted written comments before the December 8, 2022 meeting and

plaintiff's professional planner was given four minutes to offer his thoughts at

the meeting in addition to his written comments.

The judge explained the imposed time limit "was tailored to achieve the

government's significant interest in allowing greater participation by more

members of the public." Further, the judge noted the time limit was established

"prior to opening the public comment portion of the meeting and was applied to

all parties." The judge stated the time constraint did not violate the OPMA

because case law gives a public body discretion in conducting meetings and

N.J.S.A. 10:4-12(a) permits a public body to regulate public participation at its

meetings.

The judge also rejected plaintiff's challenge to the Board's consistency

review and the Township Committee's reliance on the recommendations

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emanating from the Board's consistency review. In dismissing those claims, the

judge found the Board's consistency review "satisfie[d] the MLUL."

As to the form of the Board's consistency review, the judge held the

MLUL did not require "formality by the Board in its review and in reporting

back to the [Township] Committee." The judge specifically found the MLUL

did not require the Board to submit a written resolution reporting its consistency

findings. In fact, the judge concluded the Board "exceeded" the MLUL's

reporting requirements because it held two public meetings with participation

from the public and formed an ad hoc committee to consider the Ordinance's

consistency with the Township's master plan.

The judge also cited the email from the Board's attorney which detailed

the Board's finding that the Ordinance was consistent with the Township's

master plan. The judge found this email "satisfie[d] the report requirement" of

the MLUL and "the form and substance of the [email] report comport[ed] with

the provisions of the MLUL."

Additionally, the judge concluded the Township Committee satisfied its

obligation under the MLUL to review the consistency report . The judge

determined "the detailed review of the report on the record in the presence of

the [Township] Committee and the comments by the voting [Township]

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Committee members as to the report, satisfie[d] their obligation to review the

Board's report." Moreover, the judge expressly found the Township Committee

"incorporated the recommendation[s] of the Board it viewed as pertinent and

addressed its reasons for declining to apply the other suggestions."

In addition, the judge found "there [wa]s nothing improper" about the

Board's secretary and Board's administrator sending a summary of pertinent

information to the Board to decide whether the Ordinance was consistent with

the Township's master plan. The judge held "the Board was free to accept this

information during their administrative review."

The judge also rejected plaintiff's claim the amended Ordinance was

inconsistent with the Township's master plan. The judge found "the

municipality complied with the requirements of the MLUL where it was

responding to a need identified by the Board where the Board requested

legislative guidance as to banquet halls as accessory uses." The judge

determined "[t]he [a]mended Ordinance formalize[d] what had been . . . an ad

hoc approach applied by the Board to a reoccurring issue in Lakewood given the

number of schools." As the judge noted, the Township's master plan

acknowledged the Township has a large number of private, parochial schools,

the Board historically viewed banquet halls and catering facilities as accessory

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uses to schools, and the amended Ordinance only applied to non-residential

zones where schools are permitted uses. Thus, the judge found that "[b]y

providing parking requirements for accessory banquet facilities, where there

were none, the Ordinance cannot be said to be unreasonable or to distort the

basic provisions of the [m]aster [p]lan" because "[t]he [O]rdinance addresse[d]

an issue in zones where schools have been permitted, and where banquet

facilities have been viewed as accessory uses."

In dismissing plaintiff's assertion that the amended Ordinance constituted

a conditional use, the judge found the amended Ordinance "d[id] not create a

conditional use" because "the [Township] Committee has legislated through the

Ordinance providing that a banquet facility shall continue to be considered an

accessory use to a school, the school being the principal use."

Nor did the judge deem the use of word "etc." in the amended Ordinance

too vague. The judge explained the term "etc." "[wa]s defined as the areas 'not

associated with the banquet hall functions' followed by a non-exhaustive list."

Moreover, the judge stated, "the term 'etc.' [wa]s regularly used in regulations

to emphasize that the examples provided [we]re a non-exhaustive list, which

was the case here."

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Plaintiff also argues the amended Ordinance is arbitrary, capricious,

unreasonable, and not substantially consistent with the Township's master plan.

Based on these arguments, plaintiff contends the judge erred in granting final

judgment in favor of defendants and dismissing the amended complaint. We

disagree.

Appellate courts apply a deferential standard in reviewing factual findings

by a judge. Balducci v. Cige, 240 N.J. 574, 594 (2020). In an appeal from a

bench trial, "we give deference to the trial court that . . . sifted the competing

evidence, and made reasoned conclusions." Griepenburg v. Twp. of Ocean, 220

N.J. 239, 254 (2015). "Reviewing appellate courts should 'not disturb the factual

findings and legal conclusions of the trial judge' unless convinced that those

findings and conclusions were 'so manifestly unsupported by or inconsistent

with the competent, relevant and reasonably credible evidence as to offend the

interests of justice.'" Ibid. (quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of

Am., 65 N.J. 474, 484 (1974)). However, "[a] trial court's interpretation of the

law and the legal consequences that flow from established facts are not entitled

to any special deference." Rowe v. Bell & Gossett Co., 239 N.J. 531, 552 (2019)

(alteration in original) (quoting Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995)).

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"[W]hen reviewing the decision of a trial court that has reviewed

municipal action, we are bound by the same standards as was the trial court."

Fallone Props., LLC v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 562

(App. Div. 2004). "As a general principle, a municipal ordinance is afforded a

presumption of validity, and the 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 challenging the action." Grabowsky v. Twp. of

Montclair, 221 N.J. 536, 551 (2015) (citing Price v. Himeji, LLC, 214 N.J. 260,

284 (2013)). "An ordinance must be 'liberally construed' in favor of its validity."

388 Route 22 Readington Realty Holdings, LLC v. Twp. of Readington, 221

N.J. 318, 339-40 (2015) (quoting Rumson Estates, Inc. v. Mayor & Council of

Fair Haven, 177 N.J. 338, 351 (2003)). "Our charge is to pass not on the wisdom

of a municipal ordinance, but only on whether it complies with the Constitution

and the MLUL." Id. at 340.

"Courts must also pay deference to the decision-making of municipal

bodies, recognizing that they possess 'peculiar knowledge of local conditions

[and] must be allowed wide latitude in the exercise of delegated discretion.'"

Ibid. (alteration in original) (quoting Kramer v. Bd. of Adjustment, Sea Girt, 45

N.J. 268, 296 (1965)). "A municipal land-use determination should not be set

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aside unless the public body has engaged in 'a clear abuse of discretion.'" Ibid.

(quoting Kramer, 45 N.J. at 296-97). "If there is 'substantial evidence to support'

the municipal decision, a court should not interfere by substituting its

judgment." Ibid. (quoting Kramer, 45 N.J. at 296). "[T]he fundamental question

in all zoning cases 'is whether the requirements of the ordinance are reasonable

under the circumstances.'" Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J.

282, 290 (2001) (quoting Vickers v. Twp. Comm. of Gloucester Twp., 37 N.J.

232, 245 (1962)).

Under the MLUL:

The governing body may adopt or amend a zoning

ordinance relating to the nature and extent of the uses

of land and of buildings and structures thereon. . . .

[A]ll of the provisions of such zoning ordinance or any

amendment or revision thereto shall either be

substantially consistent with the land use plan element

and the housing plan element of the master plan or

designed to effectuate such plan elements.

[N.J.S.A. 40:55D-62(a).]

"[T]he MLUL gives the master plan a central role in a municipality's decisions

regarding the use and development of the land within its jurisdiction."

Willoughby v. Wolfson Grp., Inc., 332 N.J. Super. 223, 229 (App. Div. 2000).

"Nonetheless, the MLUL does not mandate absolute consistency between a

zoning ordinance and a master plan." Myers v. Ocean City Zoning Bd. of

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Adjustment, 439 N.J. Super. 96, 104 (App. Div. 2015). "[T]he concept of

'substantially consistent' permits some inconsistency, provided it does not

substantially or materially undermine or distort the basic provisions and

objectives of the [m]aster [p]lan." Ibid. (first alteration in original) (quoting

Manalapan Realty, 140 N.J. at 384). A determination by a planning board that

an ordinance is substantially consistent with a master plan "is entitled to

deference and great weight." Manalapan Realty, 140 N.J. at 383.

Here, the judge concluded the amended Ordinance was not arbitrary,

capricious, or unreasonable or inconsistent with the Township's master plan.

The judge's findings were amply supported by credible evidence in the record.

One of the Township's master plan's goals is to "[p]rovide sufficient

educational, recreational, and community facilities to meet future needs ." The

Township's land use strategies in the master plan include, among other things,

an intent to "[c]reate a balanced and compatible arrangement of residential,

business and industrial land uses and minimize land use conflicts" and to

"[a]mend the zoning ordinance, when necessary, to improve and enhance the

intent and purpose of each zone district and the consistency and clarity of the

permitted uses and development standards."

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The land use element of the Township's master plans describes the

"purpose" of the M-1 industrial zone. The purpose of that zone

is to facilitate the development of uses of an industrial

nature, such as: bulk storage, manufacturing or

assembly facilities; warehouses; public utility uses;

airports; office buildings; hotels and motels; health and

human services; restaurants; laboratories; uses

affiliated with the operations of the United States Postal

Service; and, similar uses. In addition, the M-1

([i]ndustrial) [z]one provides for the development of

quasi-public and private educational facilities.

The Township's master plan also notes "[t]he Township is home to a large

number of private, parochial primary and secondary schools" and that "[o]ne of

the critical planning issues for Lakewood is the amount of land in suitable areas

for an increasing number of private school facilities." The master plan further

states "[p]rivate schools serving the needs of Lakewood families are the most

prevalent type of educational facility in the Township, and operate with a wide

range of enrollment throughout the Township."

Here, the Ordinance allows banquet halls as permitted accessory uses to

schools in all non-residential zones where schools are permitted uses provided

the parking requirements are satisfied. The Board explained it historically

viewed banquet halls as accessory to schools and previously approved

applications allowing banquet halls attached to schools. Thus, the Board

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recommended the Township "codify[] that banquet halls [we]re an accessory use

to schools" because the Board "for many years, viewed banquet halls as an

accessory to schools" without a formal ordinance.

On this record, we are satisfied the Ordinance is not arbitrary, capricious,

or unreasonable. The Ordinance allows banquet halls as accessory uses to

schools in non-residential zones where schools are already permitted uses. See

Lakewood, N.J., Code § 18-906(I). The Ordinance provided necessary guidance

for catering facilities and banquet halls as accessory uses to schools where there

was no prior guidance.

Contrary to plaintiff's argument that the Ordinance would cause increased

traffic, the Ordinance sets forth specific parking requirements aimed to reduce

high-traffic conditions. By providing specific parking ratios, the Ordinance

ensures proper parking is available for a banquet hall operating as an accessory

use to a school and precludes on-street parking that might generate traffic

problems. The Board discussed the parking situation in detail and recommended

the Township Committee require additional parking to address increased traffic

volumes. The Ordinance simply codified the historic view within the

municipality that banquet halls and catering facilities were an appropriate

accessory use to a school in zones where schools were permitted uses.

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We agree with the judge's finding that the Ordinance was substantially

consistent with the master plan's land use element. The Township's master plan

recognizes a purpose of the M-1 industrial zone is to "provide[] for the

development of quasi-public and private educational facilities." Consistent with

this purpose, the Ordinance allows banquet halls affiliated with private schools

to operate as accessory uses to those schools. Moreover, the M-1 industrial zone

allows hotels, restaurants, and health services which, like schools, are not

traditional industrial uses. There is no evidence the Ordinance would

"substantially or materially undermine or distort" the purpose of the M -1

industrial zone. Manalapan Realty, 140 N.J. at 384. Thus, plaintiff fails to

overcome the deference accorded to the Board's consistency determination.

We next address plaintiff's argument that neither the Board nor the

Township Committee reviewed the Ordinance for consistency with the

Township's master plan. As a result, plaintiff contends the Ordinance is

arbitrary, capricious, and unreasonable.

N.J.S.A. 40:55D-64 provides: "Prior to the hearing on adoption of a

zoning ordinance, or any amendments thereto, the governing body shall refer

any such proposed ordinance or amendment thereto to the planning board

pursuant to [N.J.S.A. 40:55D-26]." N.J.S.A. 40:55D-26(a) states:

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Prior to the adoption of a development regulation,

revision, or amendment thereto, the planning board

shall make and transmit to the governing body, within

[thirty-five] days after referral, a report including

identification of any provisions in the proposed

development regulation, revision or amendment which

are inconsistent with the master plan and

recommendations concerning these inconsistencies and

any other matters as the board deems appropriate. The

governing body, when considering the adoption of a

development regulation, revision or amendment

thereto, shall review the report of the planning board

and may disapprove or change any recommendation by

a vote of a majority of its full authorized membership

and shall record in its minutes the reasons for not

following such recommendation. Failure of the

planning board to transmit its report within the [thirty-

five]-day period provided herein shall relieve the

governing body from the requirements of this

subsection in regard to the proposed development

regulation, revision or amendment thereto referred to

the planning board.

"Any ordinance regulating land use that is not adopted in accordance with

[N.J.S.A. 40:55D-62(a)] is invalid." Nouhan v. Bd. of Adjustment of Clifton,

392 N.J. Super. 283, 291 (App. Div. 2007).

Here, the judge found the Board's consistency review of the Ordinance

comported with the MLUL. The Township Committee introduced the Ordinance

at its October 20, 2022 meeting and then referred the Ordinance to the Board for

review. The Board held two consistency review meetings on November 15,

2022, and November 29, 2022. At the beginning of the November 15, 2022

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meeting, the Board's attorney explained the Board had to determine whether the

Ordinance was "consistent or inconsistent with the objectives of the [m]aster

[p]lan." As part of the consistency review, the Board considered public

comments at the November 15, 2022, meeting, including plaintiff's objections

through its attorney and comments from plaintiff's professional planner.

Additionally, the Board formed an ad hoc committee to meet with the Board's

planner and review the Ordinance's consistency with the Township's master

plan.

The Board met again on November 29, 2022 to continue its consistency

review. At that meeting, the Board's administrator reported the ad hoc

committee met and discussed whether the Ordinance should apply to residential

zones and whether the parking requirements would be sufficient. The Board

again considered public comments, including those from plaintiff's attorney and

plaintiff's professional planner. Following the comments, the Board voted to

approve a motion stating, "the Board agree[d] that an ordinance regulating

banquet halls as an accessory use to schools [wa]s consistent with the [m]aster

[p]lan" and recommended the Township Committee include more parking

requirements. The Board's attorney then sent a December 1, 2022 email to the

Township's attorney, reporting the Board's findings and expressing that the

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"[B]oard believe[d] that th[e] [O]rdinance [wa]s consistent with the master

plan." Additionally, the Board's attorney advised that the Board urged the

Township Committee to require more parking as part of the Ordinance.

Having reviewed the record, we are satisfied the Board's consistency

review complied with the MLUL. The Board held two meetings to consider

whether the Ordinance was consistent with the Township's master plan. The

Board's attorney confirmed the purpose of the Board's review of the Ordinance

and advised the Board to report its findings to the Township Committee. In an

email to the Township's attorney, the Board's attorney confirmed the Board's

recommendation, finding the Ordinance consistent with the Township's master

plan. The Board attorney's email included the Board's recommendation to

increase the Ordinance's parking requirements.

The MLUL does not require any particular formality regarding the format

of a local board's consistency review report. See N.J.S.A. 40:55D-26(a). The

email from the Board's attorney to the Township's attorney comported with the

MLUL.

Contrary to plaintiff's arguments, the Board considered the comments and

objections presented by plaintiff's attorney and plaintiff's professional planner

at its consistency review meetings. Plaintiff's planning expert opined the

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Ordinance was inconsistent with the Township master plan. However, the Board

was not bound by the opinions of plaintiff's planning expert. See Allen v.

Hopewell Twp. Zoning Bd. of Adjustment, 227 N.J. Super. 574, 581 (App. Div.

1988) (noting the planning board was free "to accept or reject" the opinions of

an expert planner presented by the plaintiffs). We are satisfied there is sufficient

evidence supporting the Board's consistency review in accordance with N.J.S.A.

40:55D-26(a).

Plaintiff further argues the email from the Board's attorney failed to

adequately convey the concerns related to the Ordinance addressed during the

Board's meetings. We disagree.

The Board's primary concerns in its consistency review meetings focused

on the Ordinance's impact on residential zones and the parking requirements.

These concerns were conveyed to the Township Committee in the Board

attorney's email. This email included the Board's consideration of "possible

different alternatives to define the criteria from which parking ratios could be

calculated," including "a ratio that would be based upon the gross square footage

of the building." Thus, the Board's attorney adequately conveyed the Board's

concerns about the Ordinance.

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We also reject plaintiff's argument that the Board's action was arbitrary,

capricious, and unreasonable because the Board never discussed

"grandfathering" existing schools with banquet halls. Although the Board may

not have used the term "grandfathering," the Board noted its longstanding view

that banquet halls were accessory uses to schools and its historical approval of

applications for banquet halls in schools. Further, the Board reviewed existing

schools with banquet halls to determine an appropriate parking ratio as part of

its recommendation to the Township Committee.

In support of its claim that the Ordinance is arbitrary, capricious, and

unreasonable, plaintiff also argues the Board failed to request a report from the

Board's planner. However, the Board's planner served as a member of the ad

hoc committee formed to address the Ordinance's consistency with the

Township's master plan.

We are satisfied the Board's recommendation regarding the Ordinance's

consistency with the Township's master plan was not arbitrary, capricious, or

unreasonable. Thus, the judge properly entered judgment for defendants on this

issue.

Plaintiff also argues the Township Committee's limiting of public

comment to four-minutes at the December 8, 2022 meeting was arbitrary,

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capricious, and unreasonable and prejudiced plaintiff's right to be heard. We

disagree.

The Township Committee's imposition of a four-minute time limit for

public comment at its December 8, 2022 meeting applied to everyone. During

his time, plaintiff's attorney voiced plaintiff's objection to the amended

Ordinance. Plaintiff's planning expert also used his four minutes to voice

objections to the amended Ordinance. Further, the Township Committee

included plaintiff's December 7, 2022 letter to the Township Committee

objecting to the amended Ordinance as part of the record at the December 8

meeting.

The OPMA provides that "all meetings of public bodies shall be open to

the public at all times" absent certain exceptions. N.J.S.A. 10:4-12(a). It also

provides that "[n]othing in [the OPMA] shall be construed to limit the discretion

of a public body to permit, prohibit, or regulate the active participation of the

public at any meeting." Ibid. Regarding compliance with the OPMA, "public

bodies are given discretion in how to conduct their meetings." Kean Fed'n of

Tchrs. v. Morell, 233 N.J. 566, 571 (2018) (citing N.J.S.A. 10:4-12(a)). N.J.S.A.

40:49-2(b) provides that whenever a meeting "for the further consideration" of

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an ordinance is held, "all persons interested shall be given an opportunity to be

heard concerning the ordinance."

We discern no error in the Township Committee's procedure for the

presentation of public comment at its December 8, 2022 meeting. The four-

minute time constraint on public comment applied to all members of the public,

not just to plaintiff's attorney and plaintiff's planning expert. Further, the time

limit did not regulate the content of public comments. Plaintiff had ample

opportunity to present its objections to the amended Ordinance at the Township

Committee's December 8, 2022 meeting prior to the Ordinance's adoption.

Additionally, plaintiff asserts a Township Committee member had a

disqualifying conflict of interest precluding his voting on the Ordinance under

N.J.S.A. 40A:9-22.5(d). Plaintiff argues the Township Committee member had

a conflict of interest because his children attended a school with a banquet hall

and the Ordinance would thus benefit that member. Plaintiff further claims the

Township Committee member's mother served as an administrator at schools in

the municipality and those schools would benefit from adoption of the

Ordinance. Because it claims these immediate familial relations disqualified the

Township Committee member's participation in meetings concerning the

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Ordinance, plaintiff argues the Township Committee lacked a majority of the

governing body to vote on the amended Ordinance. Again, we disagree.

"Under our common law, '[a] public official is disqualified from

participating in judicial or quasi-judicial proceedings in which the official has a

conflicting interest that may interfere with the impartial performance of his

duties as a member of the public body.'" Grabowsky, 221 N.J. at 551 (alteration

in original) (quoting Wyzykowski v. Rizas, 132 N.J. 509, 523 (1993)). The

Local Government Ethics Law (LGEL), N.J.S.A. 40A:9-22.1 to -22.25, is

designed "to make ethical standards in state and local government 'clear,

consistent, uniform in their application, and enforceable on a statewide basis.'"

Id. at 552 (quoting Wyzykowski, 132 N.J. at 531).

Under the LGEL:

No local government officer or employee shall act in

his official capacity in any matter where he, a member

of his immediate family, or a business organization in

which he has an interest, has a direct or indirect

financial or personal involvement that might

reasonably be expected to impair his objectivity or

independence of judgment.

[N.J.S.A. 40A:9-22.5(d).]

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The LGEL defines "[m]ember of immediate family" as "the spouse or dependent

child of a local government officer or employee residing in the same household."

N.J.S.A. 40A:9-22.3(i).

Wyzykowski set forth the circumstances mandating disqualification of a

public official, which include:

(1) "Direct pecuniary interests," when an official votes

on a matter benefitting the official's own property or

affording a direct financial gain; (2) "Indirect pecuniary

interests," when an official votes on a matter that

financially benefits one closely tied to the official, such

as an employer, or family member; (3) "Direct personal

interest," when an official votes on a matter that

benefits a blood relative or close friend in a non-

financial way, but in a matter of great importance . . .

and (4) "Indirect [p]ersonal [i]nterest," when an official

votes on a matter in which an individual's judgment

may be affected because of membership in some

organization and a desire to help that organization

further its policies.

[132 N.J. at 525-26.]

"[W]hether a particular interest is sufficient to disqualify is necessarily a

factual one and depends upon the circumstances of the particular case." Van

Itallie v. Borough of Franklin Lakes, 28 N.J. 258, 268 (1958) (citing Aldom v.

Borough of Roseland, 42 N.J. Super. 495, 503 (App. Div. 1956)). "To determine

whether there is a disqualifying interest, a court need not ascertain whether a

public official has acted dishonestly or has sought to further a personal or

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financial interest; the decisive factor is 'whether there is a potential for conflict.'"

Grabowsky, 221 N.J. at 554 (quoting Wyzykowski, 132 N.J. at 524). "A

conflicting interest arises when the public official has an interest not shared in

common with the other members of the public." Wyzykowski, 132 N.J. at 524

(citing Griggs v. Borough of Princeton, 33 N.J. 207, 220-21 (1960)). "Another

way of analyzing the issue is to understand that '[t]here cannot be a conflict of

interest where there do not exist, realistically, contradictory desires tugging the

official in opposite directions.'" Ibid. (alteration in original) (quoting LaRue,

68 N.J. Super. at 448). "The question will always be whether the circumstances

could reasonably be interpreted to show that they had the likely capacity to tempt

the official to depart from his sworn public duty." Van Itallie, 28 N.J. at 268.

Nonetheless, "[t]he determinations of municipal officials should not be

approached with a general feeling of suspicion." Id. at 269. "The ethics rules

must be applied with caution, as '[l]ocal governments would be seriously

handicapped if every possible interest, no matter how remote and speculative,

would serve as a disqualification of an official.'" Grabowsky, 221 N.J. at 554

(alteration in original) (quoting Wyzykowski, 132 N.J. at 523).

We are satisfied the Township Committee member at issue here did not

have a disqualifying interest precluding his voting on the Ordinance. The judge

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expressly rejected plaintiff's conflict of interest allegations as "remote and

speculative." Wyzykowski, 132 N.J. at 523. Thus, the Township Committee

had a required majority of members to vote on the Ordinance at its December 8,

2022 meeting and the judge did not err dismissing this claim.

Plaintiff also argues the amended Ordinance creates a conditional use in

violation of N.J.S.A. 40:55D-67. According to plaintiff, the Ordinance's parking

requirements effectively created a conditional use in non-residential zones and

failed to establish definite standards for the conditional use under the statute.

A conditional use is defined as:

[A] use permitted in a particular zoning district only

upon a showing that such use in a specified location

will comply with the conditions and standards for the

location or operation of such use as contained in the

zoning ordinance, and upon the issuance of an

authorization therefore by the planning board.

[N.J.S.A. 40:55D-3.]

"A conditional use is a use permitted in a particular zone, but only upon

certain conditions." Omnipoint Commc'n, Inc. v. Bd. of Adjustment of

Bedminster, 337 N.J. Super. 398, 413 (App. Div. 2001). "That is, a conditional

use, as opposed to a prohibited use, is based on the premise that the use is

generally suitable to a particular zoning district, but not at every location in the

district." Ibid. (citing Coventry Square v. Westwood Zoning Bd. of Adjustment,

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138 N.J. 285, 294 (1994)). "Consequently, a conditional use ordinarily will

require compliance with special enumerated standards with respect to traffic

patterns, street access, parking and such, to [en]sure that it can be compatibly

integrated with the district as a whole." Ibid. (citing Coventry Square, 138 N.J.

at 294).

N.J.S.A. 40:55D-67(a) provides: "A zoning ordinance may provide for

conditional uses to be granted by the planning board according to definite

specifications and standards which shall be clearly set forth with sufficient

certainty and definiteness to enable the developer to know their limi t and

extent." If a conditional use clause in an ordinance does not include these

specific standards, it may be "void for vagueness." Meszaros v. Plan. Bd. of S.

Amboy, 371 N.J. Super. 134, 144 (App. Div. 2004).

We are satisfied the Ordinance did not create a conditional use. The

Ordinance is clear that "[i]n all non-residential zones where schools are

permitted uses . . . catering facilities and banquet halls shall continue to be

allowed as accessory uses in the school buildings" provided that the parking

requirements are met. Lakewood, N.J., Code § 18-906(I)(1). Under the

Ordinance, the schools are the principal permitted use, while the catering

facilities and banquet halls are accessory uses serving events associated with

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private schools throughout the municipality. Catering facilities and banquet

halls serve as "customary" and "incidental" uses to the principal permitted use

of the school and, therefore, are accessory uses to the schools rather than

conditional uses. Mountain Hill, L.L.C. v. Zoning Bd. of Adjustment of

Middletown, 403 N.J. Super. 210, 243 (App. Div. 2008) (citing State v. P.T. &

L. Const. Co., Inc., 77 N.J. 20, 26-27 (1978)).

We also reject plaintiff's argument related to the use of the word "etc." in

the Ordinance as vague rendering it arbitrary, capricious, and unreasonable. As

to parking, the Ordinance states:

For the section of the school utilized for catering and

banquet functions (to be known as the [b]anquet [h]all

space, but not including bathrooms, food prep rooms,

and facilities not associated with the [b]anquet [h]all

function such as guest preparation rooms etc.) 1.0

parking space shall be required for every 50 square feet

thereof.

[Lakewood, N.J., Code § 18-906(I)(1)(a).]

The judge noted the term "etc." followed the phrase "facilities not

associated with the [b]anquet [h]all function." He explained the Ordinance

specifically listed examples and concluded the word "etc." "emphasize[d] that

the examples provided [we]re a non-exhaustive list." We agree with the judge

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that the term "etc." did not render the Ordinance arbitrary, capricious, or

unreasonable.

For the foregoing reasons, we affirm the orders challenged on appeal.

Affirmed.

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