Full Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2444-24 JAMES E. HENRY, SARAH HENRY, and 83 MORRIS AVENUE, LLC, Plaintiffs-Appellants, v. PLANNING BOARD OF THE BOROUGH OF MANASQUAN, Defendant-Respondent. ___________________________ Argued September 24, 2026 – Decided October 26, 2026 Before Judges Chase and Augostini. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2990-23. James M. Turteltaub argued the cause for appellants (The Turteltaub Law Firm LLC, attorneys; James M. Turteltaub and Linda A. Turteltaub, of counsel and on the briefs). George D. McGill argued the cause for respondent (McGill & Hall LLC, attorneys; George D. McGill, on the brief). PER CURIAM Plaintiffs James E. Henry, Sarah Henry, and 83 Morris Avenue, LLC appeal from a January 21, 2025 order affirming defendant Planning Board of the Borough of Manasquan's (Board) denial of their variance application and dismissing their complaint in lieu of prerogative writs with prejudice. 1 We affirm. I. The Henrys own residential property in Manasquan (Borough). 83 Morris Avenue, LLC, a limited liability company whose only members are the Henrys, owns the adjacent property—a vacant lot next to the Henrys' home. The Roberts Swamp Brook, a tidal water body, runs behind the property. The Henrys made backyard improvements to the property, including building a pool, garage, patio, and retaining walls. At the time these improvements were made, the Department of Environmental Protection required certain permits to comply with wetlands and flood hazard rules. As a result, the 1 Plaintiffs amended notice of appeal states they are appealing from only the January 21, 2025 order. See R. 2:5-1(f)(2)(ii); see also W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458 (App. Div. 2008). A-2444-24 2 Henrys had to raise the elevation of their backyard by adding three feet of fill. "The property needed to be filled to one foot above flood elevation," which caused the Henrys to install three-foot high retaining walls on both the southeast and northwest property lines "to comply with the [B]orough's ordinances for stormwater runoff[.]" The Henrys then installed a three-foot chain link fence at the top of the wall. The Henrys wanted to replace this chain link fence with a six-foot solid vinyl fence, contending it was necessary to safeguard their children and keep their dogs corralled on the property. The Borough's zoning ordinance restricts fences to six feet above the "existing grade" of the property. Manasquan, N.J., Ordinance 2376-22 (Oct. 3, 2022) (containing the language at issue from Manasquan, N.J., Code § 35-7.5). Therefore, the Henrys filed a variance application, seeking approval to build a six-foot fence on top of the three-foot retaining wall for a total height of nine feet. On June 20, 2023, the Board conducted a hearing on the application. James E. Henry testified and called two experts: a licensed professional engineer and a licensed project planner. At the conclusion of the hearing, the Board voted to deny the application. On August 1, 2023, it adopted Resolution 25-2023, memorializing its decision. A-2444-24 3 On September 22, 2023, plaintiffs filed a complaint in lieu of prerogative writs challenging the Board's denial of their application. On September 10, 2024, the court conducted a one-day trial, and after which it ordered supplemental briefing on whether a limited remand to the Board for interpretation of the municipal zoning ordinance was appropriate. On October 18, the court remanded the matter to the Board for the "limited purpose [of] declar[ing] their interpretation of Manasquan Municipal Code § 35-7.5," and "determin[ing] the meaning of the term 'existing grade' from the Code[.]" On December 3, 2024, the Board held a meeting at which the public, including the Henrys, were not permitted to participate. After some discussion, the Board issued Resolution 40-2024 defining "existing grade" as "the grade of the land before any alterations are made to it, the original state of the grade before alterations, and in the subject case the grade before the construction of the retaining wall." On January 21, 2025, the court affirmed the Board's denial of the variance application and dismissed the complaint with prejudice. Plaintiffs moved for reconsideration. On March 19, 2025, the court denied reconsideration. On appeal, plaintiffs argue the Board's interpretation of "existing grade" was flawed; the hearing on December 3, 2024 was improper; and the variance A-2444-24 4 for the height of the fence should have been granted. They claim the Board's interpretation violates its own ordinance, is ambiguous, and would produce an absurd result. II. A. "When reviewing a trial court's decision regarding the validity of a local board's determination, 'we are bound by the same standards as was the trial court.'" Jacoby v. Zoning Bd. of Adj. of Borough of Englewood, 442 N.J. Super. 450, 462 (App. Div. 2015) (quoting Fallone Props., L.L.C. v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 562 (App. Div. 2004)). "We have long recognized that zoning boards, 'because of their peculiar knowledge of local conditions[,] must be allowed wide latitude in the exercise of delegated discretion.'" Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (alteration in original) (quoting Kramer v. Bd. of Adj., 45 N.J. 268, 296 (1965)). A planning board's land use decisions are entitled to a presumption of validity. Ibid. Therefore, we defer to the actions of local boards, Jacoby, 442 N.J. Super. at 462, and reverse those decisions only if arbitrary, capricious, and unreasonable. Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adj., A-2444-24 5 152 N.J. 309, 327 (1998) (quoting Sica v. Bd. of Adj., 127 N.J. 152, 166-67 (1992)). "An appellate court reviews de novo the statutory interpretation decisions of a trial court." Monarch Cmtys., LLC v. Twp. of Montville, 264 N.J. 452, 463 (2026) (citing Cowan v. State Parole Bd., 263 N.J. 91, 105 (2026)). When interpreting a statute, "[o]ur primary goal . . . 'is to discern and effectuate the intent of the Legislature.'" Ibid. (omission in original) (quoting Shipyard Assocs., LP v. City of Hoboken, 242 N.J. 23, 38-39 (2020)) (internal quotation marks omitted). "We 'consider[] the statute's plain language, ascribing to the words used their ordinary meaning and significance.'" Ibid. (alteration in original) (quoting Shipyard Assocs., LP, 242 N.J. at 38) (internal quotation marks omitted). These well-established principles of statutory interpretation "govern the interpretation of a municipal ordinance[]" as well. Twp. of Pennsauken v. Schad, 160 N.J. 156, 170 (1999) (citing AMN, Inc. v. S. Brunswick Rent Leveling Bd., 93 N.J. 518, 524-25 (1983)). "[A]n ordinance should be interpreted to 'effectuate the legislative intent in light of the language used and the objects sought to be achieved.'" Ibid. (quoting Merin v. Maglaki, 126 N.J. 430, 435 (1992)) (internal quotation marks omitted). A-2444-24 6 The Henrys applied to the Board for variance relief from Ordinance § 35- 7.5, "Walls and Fences," which at the time stated: No wall/fence shall be erected, maintained to a height greater than six feet above the existing grade of the property, provided that the same is more than [twenty- five] feet from any street line. No wall/fence shall be erected, maintained to a height greater than four feet within [twenty-five] feet of any street line. In October 2022, the ordinance was amended from a fence shall not be erected to a "height greater than six feet above ground level," to a "height greater than six feet above the existing grade of the property." The amended ordinance's definition of "the existing grade of the property" is at issue in this appeal. The Henrys contend the trial court erred by remanding the matter to the Board to interpret the term "existing grade" in Borough Ordinance § 35-7.5 and it should have conducted its own de novo review. Because "different interpretations [of existing grade] could influence [the] court's decision," and the Board did not state its interpretation of this term, the court determined a remand for purposes of amplification was necessary. We discern no error in this decision. The trial court was tasked with determining whether the Board's denial of the Henrys' variance application was arbitrary, capricious, and unreasonable. In doing so, the court had to determine whether the Board "could reasonably have A-2444-24 7 reached its decision on the record." Cohen v. Bd. of Adj. of Rumson, 396 N.J. Super. 608, 615 (App. Div. 2007) (quoting Jock v. Zoning Bd. of Adj., Twp. of Wall, 184 N.J. 562, 597 (2005)). Because the gravamen of the Board's decision rested on its interpretation of "existing grade," and "arguments [had] been raised [as] to what the proper interpretation of Manasquan Municipal Code § 35-7.5 is," the court acted well-within its authority to issue a limited remand for the Board to set forth its interpretation. By issuing a limited remand, the court did not delegate its authority to the Board. Although neither party had requested a remand, the court determined the clarification would aid in its review of the Board's decision. After giving the Board an opportunity to amplify its findings, the court conducted a de novo review of its interpretation of "existing grade" without giving that interpretation any particular deference. See Reich v. Borough of Fort Lee Zoning Bd. of Adj., 414 N.J. Super. 483, 499 (App. Div. 2010). Indeed, by doing so, the court recognized the Board's specialized knowledge about its community and zoning ordinances. Price, 214 N.J. at 284. The limited remand was also proper because there were two existing grades on the Henrys' property: one on the internal side and one on the external side of the retaining wall. Thus, clarification was needed to identify which existing A-2444-24 8 grade would be used for purposes of calculating the height of the Henrys' proposed fence. The Henrys assert the Board compounded the error by its unwillingness to permit a hearing and testimony on the interpretation issue of "existing grade ." At the time of the court's remand, the record had been closed, and the purpose of the remand was limited to the Board's clarification on how it defined "existing grade." No further testimony was required for the Board to clarify its interpretation of this term. Under these circumstances, we discern no error in the court's decision to limit the remand to the Board's amplification of the term "existing grade" without further testimony or evidence. B. The Board memorialized its interpretation of the term existing grade in Resolution 40-2024, stating the phrase means "the grade of the land before any alterations are made to it, the original state of the grade before alterations, and in the subject case the grade before the construction of the retaining wall." The Henrys argue the court erred by not interpreting the ordinance's plain, unambiguous language to mean the grade of the land as it presently exists. They assert this interpretation conflicts with Borough Ordinance § 35-3(a), "Word Usage," which provides "[w]ords used in the present tense include the future A-2444-24 9 tense." The Henrys further contend the court "rubberstamped" the Board's "flawed and patently absurd" interpretation, instead of conducting a de novo review. Courts must look to the plain language of a statute or ordinance as "the best indicator of [its] intent." DiProspero v. Penn, 183 N.J. 477, 492 (2005). "The language of the statute must be construed in accordance with its ordinary and common-sense meaning." Saccone v. Bd. of Trs. of Police & Firemen's Ret. Sys., 219 N.J. 369, 380 (2014) (citations omitted). If the plain language of the statute is clear and "susceptible to only one interpretation[,]" then courts should apply that plain-language interpretation. DiProspero, 183 N.J. at 492 (quoting Lozano v. Frank DeLuca Const., 178 N.J. 513, 522 (2004)) (internal quotation marks omitted). If, however, "there is ambiguity in the statutory language that leads to more than one plausible interpretation, we may turn to extrinsic evidence, 'including legislative history, committee reports, and contemporaneous construction.'" Id. at 492-93 (quoting Cherry Hill Manor Assocs. v. Faugno, 182 N.J. 64, 75 (2004)). The court concluded the record supports the Board's interpretation and its decision to deny the variance was neither arbitrary, capricious nor unreasonable. A-2444-24 10 During the hearing on the Henrys' application, their project engineer explained Manasquan, N.J., Ordinance 2376-22 (October 3, 2022) indicates that no wall [/] fence shall be erected to a height greater than six feet above existing grade. So, if you take the existing grade as the bottom of the wall, you have a three-foot high wall and a six-foot high fence. By ordinance, that's nine [feet] in height, whereas six [feet] is the maximum permitted. So they are asking for a variance. This is a safety issue for them. The trial court aptly noted, "[t]he Board heard this testimony and made no objection or asked any follow up questions regarding [the expert's] interpretation of 'existing grade.'" The court explained "[t]he remand order allowed for the ambiguity from this ordinance to be cleared for the [c]ourt's decision." The language of the ordinance prior to the 2022 amendment provided "[n]o wall or fence shall be erected, maintained or planted to a height greater than six feet above ground level . . ." as compared to the amended language, which stated "[n]o wall or fence shall be erected, maintained to a height greater than six feet above the existing grade of the property . . . ." The Borough mayor stated "unequivocally" the Borough Council and Board's intent at the time of the 2022 amendment was "for existing grade to be prior to the fill being applied to the land." The intent of "the fence restrictions A-2444-24 11 in the Borough is designed to prevent one property from unduly restricting air, light and open space to neighboring properties and the community in general through the construction of too-tall fences." The court "follow[ed] the interpretation that coincide[d] with the legislative intent." The Henrys next contend a retaining wall is not included in the "wall/fence" terminology of the applicable ordinance. Manasquan, N.J., Code § 35-3.1 defines the term "retaining wall" separately as "A structure more than [eighteen] inches high erected between lands of different elevation to protect structures and/or to prevent the washing down or erosion of earth from the upper slope level." They further assert because the ordinance separately defines a retaining wall, it would not be included in the "[w]alls and [f]ences" terminology in Borough Ordinance § 35-7.5. The trial court rejected this argument. We too are unpersuaded. The record is devoid of any evidence a "retaining wall" does not classify as a "wall." While the ordinance does not have a separate definition of "wall" as it does for "retaining wall," there is no indication a retaining wall is not simply a unique type of wall. Manasquan, N.J., Code § 35-3.1; see also Black's Law Dictionary 1902 (12th ed. 2024) (defining a wall as "[a]n erection of stone, brick, or other material raised to varying heights, esp. inside or surrounding a building, A-2444-24 12 for privacy, security, or enclosure."). Thus, we are satisfied the court applied the correct standard of review and properly concluded the Board's interpretation was supported by the record and comported with legislative intent. C. N.J.S.A. 40:55D-70(c) grants a local planning board authority to consider variance relief under two options. As the trial court correctly noted, "the applicant has the burden of showing for [subsection] (c)(1) there is undue hardship or for [subsection] (c)(2) that the benefits of the application substantially outweigh the detriment." See N.J.S.A. 40:55D-70(c)(1), (2). Subsection (c)(1) "permits a variance from a bulk or dimensional provision of a zoning ordinance," such as height restriction, "when, by reason of exceptional conditions of the property, strict application of a bulk or dimensional provision would present peculiar and exceptional practical difficulties or exceptional hardship to the applicant." Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 29 (2013). "Such exceptional conditions may include the dimensions of the property, topographic conditions, or some other extraordinary or exceptional feature unique to the property." Ibid. An applicant who is seeking a variance under (c)(1) has the burden of establishing an "undue hardship." Ibid. A-2444-24 13 Subsection (c)(2) permits an "alternative ground" to grant a bulk or dimensional variance "for a specific property, if the deviation from bulk or dimensional provisions of a zoning ordinance would advance the purposes of the zoning plan and if the benefit derived from the deviation would substantially outweigh any detriment." Id. at 30 (citing Nash v. Bd. of Adj. of Morris Twp., 96 N.J. 97, 106 (1984)). "For a (c)(2) variance, approval must be rooted in the purposes of the zoning ordinance rather than the advancement of the purposes of the property owner." Ibid. (citing Kaufmann v. Plan. Bd. for Warren Twp., 110 N.J. 551, 562-63 (1988)). A (c)(1) variance "requires proof of the 'positive criteria,' which are predicated on 'exceptional and undue hardship' because of the exceptional shape and size of the lot." Bressman v. Gash, 131 N.J. 517, 522-23 (1993). "A [(c)](2) variance requires a balancing of the benefits and detriments from the grant of a variance." Ibid. (citing Kaufmann, 110 N.J. at 558-60). "Both [(c)](1) and (2) variances require proof of the negative criteria, which consists of the absence of substantial detriment to the public good, or detriment to the zone plan and zoning ordinance." Ibid. The Board found the Henrys failed to explain why a six-foot fence was insufficient to keep their children safe and their dogs corralled. It further A-2444-24 14 concluded the relief could not be "granted without substantial detriment to the public good." The record established the proposed nine-foot fence would impede the air flow and restrict the light into the neighbor's property. As to the hardship asserted by the Henrys, the Board found they filled the property to a grade that was advantageous to their purposes, thus "creat[ing] the topography of the land" resulting in the need for the variance. The Board concluded this "self-created" condition "cannot serve as the basis for hardship relief." See Jock, 184 N.J. at 591 (holding "[w]here the hardship has been created by the applicant, . . . relief will normally be denied[.]"). Recognizing the Board's "peculiar knowledge of local conditions," and according appropriate deference to its expertise, Pierce Estates Corp. v. Bridgewater Twp. Zoning Bd. of Adj., 303 N.J. Super. 507, 514-15 (App. Div. 1997) (internal quotation marks omitted), the trial court concluded the Board's decision was neither arbitrary, capricious, or unreasonable. See also Wilson v. Brick Twp. Zoning Bd. of Adj., 405 N.J. Super. 189, 196 (2009). The record supports this conclusion, and we see no basis to second-guess this finding. To the extent we have not addressed any of the remaining arguments raised by the parties it is because we have determined they lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). A-2444-24 15 Affirmed. A-2444-24 16