NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Plaintiff, Henry Saminski, appeals a September 19, 2014 order dismissing his case for lack of jurisdiction. We remand.

Plaintiff resides in the Town of Westfield in a residence which shares its rear property line with a property located on Boynton Court (the property). Initially, the property contained a one-story, single family residence. After Joseph and Stephen Buontempo1 purchased the property on April 1, 2014, they applied for a building permit to demolish the one-story home and construct a larger, two-and-a-half-story home on the property. At the request of the Buontempos, Guarriello & Dec Associates, L.L.C. (the surveyors) prepared a plot plan which included a boundary survey depicting the dimensions of the then-existing one-story house as well as the proposed two-and-a-half-story house. Buontempo submitted the plan with his permit application on May 13, 2014. After the Town Council approved the demolition, Westfield Zoning Officer Kathleen Neville granted the Buontempos a demolition permit on May 20, 2014, and a building permit on June 10, 2014. Plaintiff was not notified of the issuance of these permits.

Neville had concluded that the Buontempo plan conformed to the community scheme and did not require the Buontempos to apply for a variance. The old structure was razed and the Buontempos started construction soon after obtaining their construction permit in June.

On July 31, 2014, fifty-one days after the issuance of the building permit, plaintiff filed an order to show cause and a verified complaint in lieu of a prerogative writs with the trial court, to enjoin construction on the property, and to compel Neville to issue a stop-work order. Plaintiff asserted that the plot plan was inaccurate, the new home under construction was not in conformity with the rear-yard set-back requirements for the town's land use ordinance, and that he could only see the alleged nonconformity after the frame of the new home was erected. Buontempo opposed the application and the court denied plaintiff's requests for interim relief, and scheduled the return date for the order to show cause until September 19, 2014. Neville filed a motion to dismiss the plaintiff's complaint with prejudice for failure to state a claim upon which relief could be granted. R. 4:6-2(e).

The trial judge heard argument and on September 19, 2014, granted Neville's motion and dismissed plaintiff's complaint with prejudice. The trial court found that it lacked jurisdiction because plaintiff had not exhausted his administrative remedies and should have first appealed to the Zoning Board of Adjustment (the Board) under N.J.S.A. 40:55D-72a. The court also found no special damages excusing plaintiff's failure to exhaust his administrative remedies. She issued an order dismissing plaintiff's verified complaint on September 19, 2014, and issued an order dismissing his amended complaint on October 10, 2014. This appeal followed.

When reviewing a trial court's application of the law in cases involving zoning ordinances and municipal zoning appeals, we abide by a plenary standard of review. See Cherney v. Zoning Bd. of Adj. of Matawan, 221 N.J.Super. 141, 144-45 (App. Div. 1987).

On appeal, plaintiff asserts that the trial court erred in dismissing his complaint for lack of jurisdiction. He argues that his complaint should be reinstated because he was not required to exhaust administrative remedies; rather, he argues that because he suffered special damages, he was entitled to proceed by way of action in lieu of prerogative writs. Alternatively, plaintiff asserts that the dismissal should have been without prejudice in order to afford him the opportunity to appeal to the Board.

We are convinced the trial judge correctly determined that the court lacked jurisdiction to consider plaintiff's complaint as a result of his failure to file an appeal to the Board within twenty days as required by N.J.S.A. 40:55D-72a. Sitkowski v. Zoning Bd. of Adjustment, 238 N.J.Super. 255 (App. Div. 1990). Moreover, we are not convinced that plaintiff met the standard of "special damages" that would allow him to seek judicial intervention without exhausting administrative remedies due to special damages. To do so, our courts require the following:

Plaintiff alleges there is a violation of an ordinance simply because his interpretation of the ordinance differs from the zoning officer's interpretation. The evidence presented does not clearly indicate a violation of an ordinance. Plaintiff claims that Neville relied on an inaccurate plat map in issuing the construction permit. Plaintiff alleges the depiction of the dimensions of the then-existing dwelling on the 2014 survey differs from a 1977 survey and contends that, according to the 1977 survey, "the erection of [defendants'] two and a half story home [is] within ten feet of [plaintiff's] detached garage," which violates the thirty-five foot minimum rear yard requirement imposed by a municipal ordinance. See WESTFIELD, N.J., ZONING ORDINANCE § 11.08E(7) (2006). Although the 1977 and 2014 surveys appear to be different, the surveys are not relevant because the then-existing dwelling on the property had been demolished, and Neville's determinations were made based upon the lot lines, rather than on the presence or dimensions of an existing structure on the lot. Based on Neville's determination of the rear line, the new construction does not violate the thirty-five foot minimum rear yard requirement. There is no evidence that Neville's determination is clearly incorrect but even if it was, it would be "[a]n intermediate situation ... `in which the administrative official in good faith and within the ambit of [her] duty ma[de] an erroneous and debatable interpretation of the ordinance and the property owner in like good faith relies thereon.'" Sitkowski, supra, 238 N.J. Super. at 262 (App. Div. 1990) (citation omitted). Under those circumstances a holder is entitled to rely upon the permit after the expiration of the twenty day appeal period; therefore, no special damages exception would apply here.

We do, however, agree with plaintiff that the dismissal of his complaint should not have been with prejudice so that he could bring his arguments before the Board.

After plaintiff filed this appeal, on November 12, 2014, he appeared before the Board to appeal Neville's determination. At oral argument of this appeal, the parties described to us a "robust discussion" with the Board as to the timing of plaintiff's filing. The Board dismissed plaintiff's appeal for failing to conform to the twenty-day period within which plaintiff was required to file and plaintiff was not permitted to address the merits of his claims before the Board. Plaintiff has since filed an appeal of the Board's decision with the Law Division in Union County, which has stayed proceedings pending our disposition in this appeal. It appears plaintiff may have already received the relief he originally sought and this appeal may be moot. A case becomes moot when the issues raised in that case are resolved before the litigation is completed. See Chase Manhattan Bank v. Josephson, 135 N.J. 209, 214 n.1 (1994). Mootness thus affects cases where a decision "can have no practical effect on the existing controversy." Greenfield v. Dep't of Corr., 382 N.J.Super. 254, 257-58 (App. Div. 2006) (citations omitted). Because we have not been provided with a complete and reliable record of those proceedings and because the issue is currently before the same trial judge, we remand the matter to the trial court to address which of plaintiff's claims survive, if any. We have considered defendant's remaining arguments and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed in part, remanded in part. We do not retain jurisdiction.