THOMAS I. GAGE v. SLEEPY HOLLOW OF WARREN, LLC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5679-08T3

THOMAS I. GAGE,

Plaintiff-Appellant,

v.

SLEEPY HOLLOW OF WARREN, LLC,

and PLANNING BOARD OF THE

TOWNSHIP OF WARREN,

Defendants-Respondents.

_________________________________

October 18, 2010

Submitted September 27, 2010 - Decided

Before Judges Reisner and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1340-08.

Thomas I. Gage, appellant pro se.

Schiller & Pittenger, P.C., attorneys for respondent Sleepy Hollow of Warren, LLC (Joseph E. Murray, of counsel; Mr. Murray and Jay B. Bohn, on the brief).

Vanderbilt and Siegel, attorneys for respondent Planning Board of the Township of Warren, join in the brief of respondent Sleepy Hollow of Warren, LLC.

PER CURIAM

In this land use case, plaintiff Thomas I. Gage appeals the Law Division's final judgment dated June 15, 2009. The judgment dismissed plaintiff's action in lieu of prerogative writs against defendants, Sleepy Hollow of Warren, LLC ("Sleepy Hollow") and the Planning Board of the Township of Warren ("the Board"). We affirm.

Briefly stated, this litigation is plaintiff's second attempt to challenge aspects of the Board's grant of preliminary subdivision approval to Sleepy Hollow, which allowed Sleepy Hollow to develop a 49.2 acre tract of land in Warren Township. Sleepy Hollow plans to build twenty single-family residences on the subject tract. Plaintiff and his wife are neighboring property owners who reside in the Township and who object to the development plans.

In September 2005, the Board granted preliminary site plan approval to Sleepy Hollow, on the condition that the developer would provide a secondary access road through the adjacent parkland owned by Somerset County. In November 2005, plaintiff and his wife, then represented by counsel, filed an action in lieu of prerogative writs in the Law Division ("the first action"). They alleged that the site plan approval was arbitrary, capricious, unreasonable, and an abuse of discretion, and sought to have the approval set aside.

The trial court in the first action rejected plaintiff's contention that one of the Board members who had voted in favor of the original preliminary site plan had a conflict of interest. Thereafter, the court granted summary judgment to Sleepy Hollow and dismissed plaintiff's claims against the Board. All remaining claims were dismissed with prejudice, following a stipulation by the parties that was entered on October 24, 2006.

Meanwhile, Somerset County declined to allow the secondary access road contemplated by the first site plan to moderate traffic congestion. Consequently, Sleepy Hollow devised an alternative traffic control plan, which involved the installation of new traffic signals and the widening of Hillcrest Boulevard to create separate turning lanes. Sleepy Hollow incorporated these changes in its application to the Board for amended preliminary major subdivision approval and partial final subdivision approval, for what is known as Phase II of the project. In July 2008, the Board approved the amended application, on the condition that Sleepy Hollow complete the proposed alternative traffic improvements. Two months later, the Board issued a resolution granting Sleepy Hollow's application for final major subdivision approval.

In September 2008, plaintiff, then self-represented (as he is on the current appeal), filed the present action in lieu of prerogative writs in the Law Division against the Board and Sleepy Hollow ("the second action"). Plaintiff's complaint challenged the Board's actions with respect to the development, including the approval of the amended plans that eliminated the initially-contemplated secondary access road. Defendants moved to dismiss the second action. After hearing oral argument, the Law Division dismissed the action, finding that several of plaintiff's claims were barred by res judicata and the entire controversy doctrine, and that the remaining claims lacked merit.

Plaintiff appeals the dismissal of his second lawsuit. Although his pro se arguments are at times unclear and lack proper citations to the record, see R. 2:6-8, it appears that he essentially contends that: (1) his action should have been adjudicated in a jury trial; (2) defendants' decisions and conduct have deprived him of due process and equal protection; (3) the judgment in the first action did not foreclose his present claims; (4) the Planning Board meetings were mistranscribed; (5) the approved subdivision does not comply with the municipal land use laws and with residential site improvement standards; (6) two of the Board members and Sleepy Hollow's engineering expert have disqualifying conflicts of interest; (7) the secondary access road provided for as a condition in the original site plan is required by law, therefore, its elimination invalidated the amended plan; (8) the Board lacked a quorum when it approved Sleepy Hollow's amended application in 2008; (9) Sleepy Hollow failed to give adequate notice of its amended plan to neighboring property owners; and (10) the estate of a now-deceased Sleepy Hollow partner failed to disclose a ten percent ownership interest in the project.

Having fully considered all of plaintiff's arguments, we affirm the Law Division's dismissal of the present action, substantially for the reasons1 set forth in Judge Fred H. Kumpf's detailed and cogent written opinion dated June 1, 2009. We agree with the trial court that many of plaintiff's claims in this second litigation are barred by the doctrine of res judicata, because they either were, or could have been, brought in the first lawsuit, see Velasquez v. Franz, 123 N.J. 498, 505-06 (1991), and by the entire controversy doctrine, which disfavors piecemeal successive litigation, see R. 4:30A; Prevratil v. Mohr, 145 N.J. 180, 190 (1996).

We further agree with the trial court that the balance of plaintiff's claims to the extent they are not precluded by res judicata and entire controversy principles are unmeritorious, particularly in light of the substantial degree of deference that courts generally must give to land use decisions by local planning boards. See Kramer v. Bd. of Adj., 45 N.J. 268, 296 (1965). Those claims, and the related legal arguments, lack sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 As an incidental correction, we note that the Board is composed of nine members, rather than the seven members assumed in the judge's decision, which, as counsel for Sleepy Hollow acknowledges in its brief on appeal, "may have been based on [Sleepy Hollow]'s representation to that effect during oral argument." The correction is inconsequential, as the record shows that a quorum was present since at least five members of the nine-member Board voted on Sleepy Hollow's applications at the relevant meetings.