MARTIN GREENBLATT v. JANICE G. ALLEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4219-09T2

A-5373-09T2

MARTIN GREENBLATT,

Plaintiff-Appellant,

v.

JANICE G. ALLEN, BRIAN D. SCHWARTZ,

JAMES RODINO, DAWN GAEBEL, PMK

GROUP, DAVID J. TESTA, DAVID

HOLLOD, BOROUGH OF NORTH

PLAINFIELD, BOARD OF ADJUSTMENT/

PLANNING BOARD, MARK C. TIGHE, JACK

FOWLER, GARY E. LEWIS, ALFRED

ZARNOWSKI, and JOHN C. LANGENBACH,

Defendants-Respondents.

_____________________________________

MARTIN GREENBLATT,

Plaintiff-Appellant,

v.

JANICE G. ALLEN, BRIAN D. SCHWARTZ,

JAMES RODINO, DAWN GAEBEL, PMK

GROUP, DAVID J. TESTA, DAVID

HOLLOD, BOROUGH OF NORTH

PLAINFIELD, BOARD OF ADJUSTMENT/

PLANNING BOARD, MARK C. TIGHE,

JACK FOWLER, ALFRED ZARNOWSKI,

and JOHN C. LANGENBACH,

Defendants-Respondents.

______________________________________

October 21, 2011

 

Submitted September 12, 2011 - Decided

Before Judges Parrillo, Grall and Alvarez.

 

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket Nos. L-7-09 and

L-299-10.

Martin Greenblatt, appellant pro se.

Craner, Satkin, Scheer & Schwartz, P.C., attorneys for respondents Zoning Board of Adjustment of the Borough of North Plainfield, Brian D. Schwartz, Dawn Gaebel, Planning Board, Mark C. Tighe, Jack Fowler, Gary E. Lewis, Alfred Zarnowski and John C. Langenbach (Brian D. Schwartz, on the briefs).

Eric M. Bernstein & Associates, L.L.C., attorneys for respondents Borough of North Plainfield, Janice G. Allen, David Hollod, James Rodino, David J. Testa and PMK Group (Eric M. Bernstein, of counsel; Mr. Bernstein and Wendy L. Wiebalk, on the briefs).

PER CURIAM

In these back-to-back matters, which we consolidate for purposes of this opinion, plaintiff, Martin Greenblatt, appeals from: (1) the April 16, 2010 order of the Law Division dismissing his prerogative writs complaint against the Borough of North Plainfield Zoning Board of Adjustment (Board),1 which denied his use variance application; and (2) the Law Division's June 11, 2010 order dismissing his later complaint against these same defendants, finding that all the claims raised by plaintiff therein were directly related to the denial of his use variance application and therefore barred by the entire controversy and estoppel doctrines. For the following reasons, we affirm, except for the award of counsel fees, which we remand for reconsideration.

Plaintiff operates businesses on property owned by his wife at 75 Somerset Street in the Borough's B-1 Business Zone. One of these businesses is a jewelry store located on the first floor of the front of the building facing Somerset Street - the Borough's main commercial thoroughfare. Another is a closed carpet warehouse/retail business in the rear of the first floor. There are also two residential apartments above the jewelry store.

Under the Borough's Land Development Ordinance (LDO), the uses permitted in the B-1 Business Zone include, among other things, stores and shops, retail businesses, banks, professional offices, restaurants and public buildings. Indisputably, use of property as a billiard hall, pool hall, or billiard caf within the B-1 zone requires a use variance.

Consequently, plaintiff filed an application with the Board, seeking a variance permitting use of the rear warehouse facing the back parking lot as a billiard hall with pool tables. To accomplish this conversion, however, plaintiff intended to perform only minimal renovations at the site, and his architectural plans submitted to the Board did not address, among other things, exterior features such as lighting and doors.

Plaintiff produced no expert testimony before the Board on the "positive" and "negative" criteria for granting the use variance. Instead, he simply testified that the proposed billiards would "keep some of the riffraff off the street that [sic] are just hanging around, and give them a place where they can relax, play some pool, and then go home." Plaintiff posited that increased foot traffic would "deter any criminal activities of people that [sic] want to climb up the fire escapes and go into people's homes and burglarize them" and deter others from trespassing and dumping debris on his property. Given this increased foot traffic, however, plaintiff planned to take no additional steps to provide security such as installing a direct telephone line to Borough Police, believing it to be unnecessary.

In contrast, the Board obtained a memorandum dated March 18, 2008 from Borough Police Detective Michael Innella, who conducted research on billiard hall safety in other municipalities. According to Innella, billiard halls in Linden, Dunellen and Plainfield experienced public drinking, drug activity and loitering, and given this particular property's location in an area "common to strong arm robberies," including a 2005 homicide, the proposed use fails to "promote a suitable atmosphere for an area where juveniles are known to congregate."

In light of these public safety concerns, the Board suggested installing new lighting or increasing the number of windows on the rear-fa ade of the building, which would allow police to monitor activity in the billiard hall from the outside. Plaintiff rejected these ideas, agreeing to install only small windows within those areas of the warehouse walls presently enclosed with sheetrock. Plaintiff would not even agree to pave his rear parking lot as required by Borough ordinance.

On November 5, 2008, the Board voted 5-1 to deny plaintiff's application, citing security concerns and increased traffic with no benefit to the public. The Resolution memorializing the Board's decision found that plaintiff neither provided any engineering documentation or plans nor indicated his willingness to make required upgrades to the site. Specifically, the resolution noted plaintiff's unwillingness to pave or improve upon the gravel rear parking lot, to upgrade a non-handicapped accessible bathroom, or to provide security for the parking lot or entrance to the proposed pool hall.

The Board concluded that plaintiff failed to prove "special reasons" for obtaining the variance and that such a grant would be inconsistent with the intent and purpose of the Borough's Master Plan and Zoning Ordinance. Specifically, the Board found

[plaintiff's] proofs were limited to his contention that there were people with nothing to do in this area of town who would benefit from a place to go, and that there were other locations where billiard tables were permitted. However, [plaintiff] provided no proofs of the location or circumstances of these billiard tables.

. . .

 

There was no suggestion by [plaintiff] that the proposed use promoted one or more of the purposes of the Municipal Land Use Law. In fact, the Board expressed concerns that the proposed use might cause safety problems, would put an undue burden on the Municipal Police Department, would in no way enhance or improve the visual environment, and would do nothing to improve flooding or drainage conditions in an area that was prone to flooding and a portion of which was located in the flood plain.

 

There were no proofs that the Property was peculiarly suited for the proposed use. The entrance of the billiard hall would be from a dark parking lot hidden from a main road, in an area that already suffered from crime, littering and gathering for questionable activities. [Plaintiff] proposed very little if anything that would upgrade the Property or the building or that would attract a desirable element to the premises. [Plaintiff] admitted that there already was a problem with people who frequented the area and the proposed use would tend to cause additional problems with people congregating in the neighborhood.

 

. . . This property was particularly unsuitable [in the B-1 zone] because of the lack of visibility of the entranceway and the mixed retail and residential character of the area[.]

 

Similarly, there were no proofs offered by [plaintiff] that would indicate that the relief could be granted without substantial detriment to the public good. Rather, there was evidence that there would be an increased likelihood of illegal activity in the area caused by congregating of people outside the building without any additional security. At the very least, there would likely be increased littering, noise, and need for police surveillance. This was a particular concern to the Board since the very parking lot from which patrons would enter and exit the [P]roperty has been the site of violent crimes in the past.

 

On December 29, 2008, plaintiff filed a complaint in lieu of prerogative writs against the Board,2 challenging the Board's denial of his use variance application. Following a bench trial, the Law Division dismissed plaintiff's complaint with prejudice, finding that the record adequately supported the Board's determination. The trial judge reasoned:

[P]laintiff wanted to convert his empty warehouse into a pool hall to make money and wasn t about to do a darn thing to improve it. Every time [the Board] asked him to do something he indicated no. So there was no indication by [plaintiff] to the Board that he was doing anything to improve it. He was simply going to move in a bunch of tables and turn the light switch on and start making money.

 

The [Board's] decision was deliberated upon and reviewed by the various submissions to the Board. They certainly gave [plaintiff] every opportunity to present whatever he had to clarify the situation. Numerous hearings were held. The Board clearly deliberated over the case in good faith voicing their concerns, came to a reasonable conclusion that plaintiff had failed to meet his burden with regard to the use variance.

 

. . . Plaintiff presented no evidence as to why special reasons existed for granting the variance, how the [P]roperty was particularly suited for the proposed use, why the use variance could be granted without causing detriment to the public good, or substantially impairing the intent of the zoning plan.

 

. . . The record demonstrates the plaintiff failed to establish any of that. The Board considered his materials, allowed ample opportunity to address its concern, deliberated, and ultimately reached a decision based on the facts, based on the land use -- nothing presented to the Board through the moving papers or the argument comes even close to that high standard to overturn the Board['s] decision with regard to this application in lieu of prerogative writ.

 

In March 2010, approximately one month before the dismissal of plaintiff's action in lieu of prerogative writs, plaintiff filed yet another complaint against the same defendants, alleging harassment, malice, fraud, discrimination, failure to comply with the Freedom of Information Act (FOIA), 5 U.S.C. 552, and violation of his civil rights, 42 U.S.C. 1983, "state and federal statute," and the Fifth Amendment Takings Clause. These causes of action arose from essentially the same claims set forth in his then pending prerogative writs action against the Board challenging denial of his use variance application. However, at no time did plaintiff move to amend his complaint in the earlier matter to include these newly asserted claims.

As a result, defendants moved to dismiss plaintiff's complaint under the entire controversy doctrine. By the time argument was heard on this motion, plaintiff's action in lieu of prerogative writs against the Board had already been dismissed. At the June 11, 2010 hearing before another Law Division judge on defendants' motion to dismiss, plaintiff was unable to demonstrate anything new that gave rise to a cause of action against defendants following dismissal of his complaint in the previous prerogative writs action. Accordingly, the judge held that plaintiff's "remedies were also quite complete and have[] been heard time and time again by Judges in this courthouse, not to mention that the prerogative writ action is on appeal to the Appellate Division." Finding the action "identical" to the previous one, the judge dismissed plaintiff's complaint with prejudice. Finally, on July 23, 2010, the judge awarded attorneys' fees of $5,000 to defendants, finding plaintiff's claims were frivolous and previously litigated. These appeals follow.

I

We first address the following issues raised by plaintiff with regard to the April 16, 2010 order dismissing his prerogative writs complaint:

I. THE LOWER COURT ABUSED ITS DISCRETION AND ERRED IN ITS FAILURE TO CONSIDER THE EQUAL PROTECTION CHALLENGE RAISED BY PLAINTIFF'S ATTORNEY.

 

II. THE LOWER COURT ABUSED ITS DISCRETION IN ITS FAILURE TO ALLOW PHOTOS INTO THE RECORD AT THE HEARING THAT REFUT[E]S THE STATEMENT PRESENTED IN THE RESOLUTION WHICH DEPICTS THE LOCATION OF A BILLIARD HALL IN THIS AREA ENTERED FROM A DARK PARKING LOT HIDDEN FROM VIEW FROM PRIMARY ROADS OF THE BOROUGH WOULD INCREASE THE DIFFICULTY IN PROVIDING SECURITY AND PREVENTING CRIME IN THE AREA.

 

III. THE LOWER COURT ABUSED ITS DISCRETION BY DISCARDING PLAINTIFF'S ATTORNEY'S ARGUMENT REGARDING HEARSAY STATEMENTS THAT WAS USED [AS] A BASIS FOR DENYING THE VARIANCE FOR CHANGE OF USE.

 

IV. THE COURT WRONGFULLY EXERCISED ITS DISCRETION BY EXPRESSING ITS DECISION BASED UPON A PALPABLY INCORRECT OR IRRATIONAL BASIS, OR IT IS [O]BVIOUS THAT THE COURT DID NOT CONSIDER, OR FAILED TO APPRECIATE THE SIGNIFICANCE OF PROBATIVE COMPETENT EVIDENCE.

 

V. BOARD'S DENIAL OF PLAINTIFF'S APPLICATION FOR A VARIANCE, ON THE GROUNDS THAT THE ENT[R]ANCE IS DOWN A DARK PARKING LOT, WAS AN IMPERMISSIBLE EXERCISE OF THE ZONING POWER, AND THE COURT'S PARROTING THESE GROUNDS AS ITS BASIS FOR CONFIRMING THE BOARD'S DECISION SHOWS AN ABUSE OF DISCRETION.

 

VI. THE COURT WRONGFULLY EXERCISED ITS DISCRETION BY EXPRESSING ITS DECISION BASED UPON A PALPABLY INCORRECT OR IRRATIONAL BASIS, OR IT IS [O]BVIOUS THAT THE COURT DID NOT CONSIDER, OR FAILED TO APPRECIATE THE SIGNIFICANCE OF PROBATIVE COMPETENT EVIDENCE.

 

Plaintiff's essential claim on appeal is that the court erred in dismissing his prerogative writs action inasmuch as the Board's denial of his use variance application was arbitrary, capricious and unreasonable. We disagree.

As a threshold matter, when reviewing a trial court's determination of the validity of an action taken by a board of adjustment, we are bound by the same standard as was the trial court. N.Y. SMSA, Ltd. P'ship v. Bd. of Adjustment of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). Thus, we give substantial deference to findings of fact, State v. Locurto, 157 N.J. 463, 470-71 (1999), but review de novo those "interpretation[s] of the law and the legal consequences that flow from established facts. . . ." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Judicial review of a factual determination by a board of adjustment is presumed to be valid and will not be overturned absent a finding that it was arbitrary, capricious or unreasonable. Jock v. Zoning Bd. of Adjustment of Wall, 184 N.J. 562, 597 (2005); Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998). A board of adjustment is best-equipped to assess the merits of a variance application given its greater familiarity with a community's interests. See Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 198 (App. Div. 2001) (citing Ward v. Scott, 16 N.J. 16, 23 (1954)); Hawrylo v. Bd. of Adjustment, 249 N.J. Super. 568, 578 (App. Div. 1991). Accordingly, "[s]uch land-use decisions are entrusted to the sound discretion of the municipal boards, which are to be guided by the positive and negative criteria set forth in the enabling statutes." Kaufmann v. Planning Bd. for Warren, 110 N.J. 551, 558 (1988); see also Burbridge v. Mine Hill, 117 N.J. 376, 385 (1990).

Given the strong legislative policy favoring land use planning by ordinance rather than variance, Medici v. BPR Co., 107 N.J. 1, 21-23 (1987), our courts ordinarily give greater deference to a board's denial of a use variance than its grant, Med. Ctr. at Princeton, supra, 343 N.J. Super. at 199; Omnipoint Commc'n, Inc. v. Bd. of Adjustment of Twp. of Bedminster, 337 N.J. Super. 398, 416 (App. Div.), certif. denied, 169 N.J. 607 (2001). A plaintiff challenging a board's denial of a land use variance "has the heavy burden of proving that the evidence presented to the board was so overwhelmingly in favor of the applicant that the board's action can be said to be arbitrary, capricious or unreasonable." Med. Realty Assocs. v. Bd. of Adjustment, 228 N.J. Super. 226, 233 (App. Div. 1988) (citing Kenwood Assocs. v. Bd. of Adjustment of Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976)). Thus, only where the denial is based upon improper considerations such as a desire to protect existing businesses from competition should a board's decision denying the variance be overturned. See Lang v. Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 57-58 (1999). "[S]o long as there is a rational basis for the board's decision, it is not the function of a reviewing court to attempt to substitute its judgment for that of the board in whom the statute reposes the power to make such determinations in the first instance." Cox, N.J. Zoning & Land Use Administration, 33-3.1 at 726-27 (2008).

Pursuant to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, a board of adjustment may grant a use variance "[i]n particular cases for special reasons . . . to allow departure from regulations . . . to permit . . . a use

. . . in a district restricted against such use." N.J.S.A. 40:55D-70d. However, "[n]o variance or other relief may be granted . . . without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." Ibid. Thus, a plaintiff has the burden of demonstrating both positive and negative criteria relating to the proposed use. Kaufman, supra, 110 N.J. at 558.

As to the former, the applicant must demonstrate "special reasons," commonly known as "positive criterion." Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 76 (App. Div. 2006). When the proposed use is inherently beneficial, such as a school or hospital, it is presumed that the use satisfies the positive criteria. Smart SMR, supra, 152 N.J. at 323. On the other hand, when it is not presumptively beneficial, such as the case of a billiard hall, "the applicant must prove, and the [B]oard must specifically find that the use promotes the general welfare because the proposed site is particularly suitable for the proposed use." Medici, supra, 107 N.J. at 4 (emphasis added).

Particular suitability for a use variance can be shown where (1) "the use is one that would fill a need in the general community," (2) "there is no other viable location," or (3) "the property itself is particularly well fitted for the use either in terms of its location, topography or shape." Funeral Home Mgmt., Inc. v. Basralian, 319 N.J. Super. 200, 210 (App. Div. 1999). Alternatively, an applicant may demonstrate undue hardship compels a particular use because the property cannot economically be used for a permitted use. Medici, supra, 107 N.J. at 17 n.9. However, "[s]pecial circumstances are not established by a showing that the proposed use would be more profitable to the owner than the permitted uses." Charlie Brown of Chatham, Inc. v. Bd. of Adjustment, 202 N.J. Super. 312, 329 (App. Div. 1985).

Here, plaintiff premised his request for a use variance on financial reasons and that "riffraff" in the area would visit the hall and stay off the streets. The Board rejected these claims, finding that plaintiff failed to satisfy his burden of demonstrating the positive criteria under N.J.S.A. 40:55D-70d. In light of the proposed location of the billiard hall fronting on a dark parking lot, which is not on a main thoroughfare and the prevalence of illegal activity and loitering in the area, plaintiff failed to demonstrate that the proposed site was "particularly suitable" for the proposed use.

Moreover, plaintiff failed to adequately explain why he could not use the property for one of twelve activities permitted in the B-1 zone. As noted in Medici, supra, an applicant can only demonstrate undue hardship by showing that the property cannot economically be used for any permitted purpose. 107 N.J. at 17 n.9. Thus, plaintiff's argument that there was a greater economic opportunity in opening a billiard hall is simply insufficient to demonstrate a "special reason." See Charlie Brown, supra, 202 N.J. Super. at 329.

Pursuant to N.J.S.A. 40:55D-70d, a land use applicant must also prove that the statute's negative criteria is satisfied. See Leon N. Weiner & Assocs., Inc. v. Zoning Bd. of Adjustment of Glassboro, 144 N.J. Super. 509, 516 (App. Div. 1976), certif. denied, 73 N.J. 55 (1977). Thus, the applicant must demonstrate that the proposed use will not cause "substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70d. In assessing the variance application, a "board of adjustment must evaluate the impact of the proposed use variance upon the adjacent properties and determine whether or not it will cause such damage to the character of the neighborhood as to constitute 'substantial detriment to the public good.'" Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 163 (1992) (quoting Medici, supra, 107 N.J. at 22 n.12).

A use variance applicant must also satisfy an "enhanced quality of proof" that the proposed use is "not inconsistent with the intent and purpose of the master plan and zoning ordinance." Medici, supra, 107 N.J. at 4. More importantly, those "proofs and findings must satisfactorily reconcile the grant of a use variance with the ordinance's continued omission of the proposed use from those permitted in the zone. . . ." Ibid.

Here, the Board properly found that plaintiff failed to carry this burden as well. Indeed, plaintiff offered no evidence reconciling his proposed use with the Borough's B-1 zone ordinance or refuting the demonstrated public safety and security concerns of the Board. Those concerns were compounded by the location of the proposed billiard hall, which faces a dark, rear parking lot and contains limited windows and lighting, as well as by plaintiff's rejection of any remedial measures aimed at mitigating those concerns. Simply stated, plaintiff has failed to meet his burden of demonstrating both the positive and negative criteria relating to his proposed use and thus cannot show that the Board's action was arbitrary, capricious or unreasonable.

Nevertheless, plaintiff takes issue with the Law Division's denial of his request to supplement the record and the Board's reliance on the police report indicating criminal activity at neighboring billiard halls. We reject both claims.

As to the former, the Law Division's November 17, 2009 case management order permitted plaintiff to supplement the record with only those items before the Board that were not produced by the Board during discovery. On February 19, 2010, the judge entered an order quashing subpoenas issued by plaintiff attempting to compel the testimony of certain Board members at trial. During trial, plaintiff again attempted to supplement the record with additional items not before the Board. Specifically, plaintiff sought to include copies of license applications; various letters; and photos of restaurants and bars in North Plainfield and of the property in question. As to the latter, plaintiff claims these photos refute the Board's finding of security concerns insofar as they show that the entrance to his building can be seen from two streets and that the parking lot is not narrow. We discern no abuse of discretion in the court's ruling.

Matters outside of the record of the proceedings before a board of adjustment may not be considered by the court on appeal. Kempner v. Twp. of Edison, 54 N.J. Super. 408, 417 (App. Div. 1959); Bove v. Bd. of Adjustment of Emerson, 100 N.J. Super. 95, 101 (App. Div. 1968). Thus, judicial review of a decision by a board of adjustment is based upon a review of the record to determine whether it supports the board's decision. Smart SMR, supra, 152 N.J. at 327; Sica, supra, 127 N.J. at 167. Accordingly, the trial judge appropriately denied plaintiff's requests, "limiting it to what occurred before the Board because [the court was] reviewing what the Board did at that time."

Nor was it error for the Board to rely on a police report detailing criminal activity at neighboring billiard halls without the author so testifying. While the MLUL permits the cross-examination of witnesses at a board of adjustment hearing, N.J.S.A. 40:55D-10d, expert testimony is not required to sustain the findings of a board. Kaufmann, supra, 110 N.J. at 565. And although the board must record and preserve testimony provided at a hearing, N.J.S.A. 40:55D-10f, the rules of evidence are not binding on matters admitted and relied upon by that body. Bd. of Educ. of Clifton v. Zoning Bd. of Adjustment of Clifton, 409 N.J. Super. 389, 430 (App. Div. 2009) (citing N.J.S.A. 40:55D-10e). In fact, the Court has held that "[s]o long as reasonable notice of the submission of such materials is afforded an opponent, with an opportunity to meet any adverse impact therefrom, there can be no fair complaint concerning the use of such aids to informed adjudication." Fobe Assocs. v. Mayor of Adjustment of Demarest, 74 N.J. 519, 542 (1977).

Here, plaintiff does not contend that he was denied the right to cross-examine or even that he attempted to call the police officer, who authored the report, as a witness. Nor does he contest the reasonableness of the notice given. On the contrary, at the hearing, the Board repeatedly expressed its concerns over crime and safety, only to be rejected each time by plaintiff, who failed to offer any proof in opposition thereto. Absent conflicting evidence showing the findings of the Board to be arbitrary, they are presumed to be valid. See Jock, supra, 184 N.J. at 597; Smart SMR, supra, 152 N.J. at 327.

Plaintiff next complains the Board's denial of his use variance application deprived him of equal protection because others similarly situated were permitted to have billiard tables in their premises. We perceive no constitutional violation here.

First and foremost, plaintiff fails to identify any billiard hall open and operating in the B-1 zone or anywhere else in the Borough for that matter. At most, as set forth in the Board's resolution, plaintiff testified that there were pool tables located as secondary uses, not primary uses, in private social halls or restaurants:

[Plaintiff] provided no proofs of the location or circumstances of these billiard tables, and apparently the tables were incidental to the primary use of these premises, were located on second floors, in private establishments not open to the general public, or in establishments fronting onto major roadways where security could better be provided. [Plaintiff] also claimed that there were billiard halls in other municipalities but he was unable to explain whether such uses were legal[] and the exact locations of the hall[s.]

Even if establishments in the B-1 zone "similarly situated" to plaintiff's were granted use variances, that is not sufficient to demonstrate a special reason. See Barry, Inc. v. Bd. of Adjustment of Newark, 9 N.J. Super. 529, 532-33 (Law Div. 1950). In Barry, the board of adjustment denied the plaintiff's application to use his property as a gas station even though there were two other gas stations on opposite street corners. Id. at 532. There, the court upheld the denial because of possible substantial detriment to the public good and impairment of the intent and purpose of the zoning ordinance given the fact that the proposed use as a gasoline station may have caused traffic hazards. Id. at 532-33. Likewise here, the Board found on sufficient credible evidence that plaintiff failed to satisfy the negative criteria that the specific use proposed is appropriate and therefore plaintiff presents no viable equal protection claim.

We have considered plaintiff's remaining challenges to the dismissal of his prerogative writs action and conclude they are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

II

We now turn to the following issues raised by plaintiff with regard to the June 11, 2010 order dismissing his subsequent complaint:

I. THE LOWER COURT ABUSED ITS DISCRETION BY IGNORING PLAINTIFF[']S SUBMISSIONS SHOWING THAT THE FIRST COMPLAINT WAS DISMISSED WITHOUT PREJUDICE.

II. THE LOWER COURT ERRED IN IT'S FAILURE TO CONSIDER THAT THE COMPLAINT IN LIEU OF PREROGATIVE WRIT WAS BASICALLY AN APPEAL REGARDING THE DENIAL BY THE ZONING BOARD OF PLAINTIFF'S APPLICATION, AND WHETHER A PREROGATIVE WRIT COURT HAS JURISDICTION TO JOIN A COMPLAINT FOR DAMAGES WITH AN APPEAL BEFORE IT.

 

III. THE LOWER COURT ERRED IN ITS FAILURE TO CONSIDER DUE PROCESS.

 

IV. THE LOWER COURT'S DISMISSAL OF THE COMPLAINT WAS ARBITRARY AND CAPRICIOUS AS IT DISREGARDED FACTS PRESENTED AT THE HEARING, AND ABUSED ITS DISCRETION BY FAILING TO ADDRESS THE FACT THAT THE MATTER BEFORE JUDGE ACCURSO WAS DISMISSED WITHOUT PREJUDICE AS IT WAS NOT RIPE FOR TRIAL.

 

V. THE LOWER COURT ABUSED ITS DISCRETION BY FAILING TO ASK DEFENDANTS['] ATTORNEY TO SUBMIT DOCUMENTATION SHOWING THAT THIS MATTER HAS BEEN BROUGHT BEFORE THIS COURT FOR THE FOURTH TIME AS IS RECITED BY MS. WIEBALK AT (T 5 LINE 5-6).

 

VI. THE LOWER COURT ERRED IN MISSTATING THE FACTS "PLAINTIFF FILED HIS FIRST COMPLAINT THEREAFTER DISMISSED BY [JUDGE] ACCURSO ON JUNE 23, 2008, SECOND COMPLAINT DISMISSED BY JUDGE ACCURSO AUG. 14TH 2009 PREROGATIVE WRIT WAS HEARD IN THIS MATTER BEFORE JUDGE COLEMAN ON AUGUST 9TH 2010" (T 4 LINE 7-13).

 

VII. THE LOWER COURT ABUSED ITS DISCRETION BY ITS FAILURE TO CONSIDER THE ISSUE RAISED BY PLAINTIFF CONCERNING THE FALSE STATEMENTS MADE BY DEFENDANTS IN VIOLATION OF 18 U.S.C. 1001.

VIII. THE TRIAL COURT ERRED IN GRANTING A

JUDGMENT FOR FRIVOLOUS LAWSUIT.

With the exception of the last issue challenging the award of counsel fees, we deem all other issues to be without sufficient merit to warrant extended discussion in this opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons stated by the Law Division judge in her oral opinion of June 11, 2010. We add only the following comments.

The entire controversy doctrine requires the adjudication of a controversy to occur in a single litigation in one court. Cogdell v. Hosp. Ctr. at Orange, 116 N.J. 7, 15 (1989). Thus, Rule 4:30A states that the failure to join "'claims required to be joined by the entire controversy doctrine shall result in the preclusion of the omitted claims.'" See Sklodowsky v. Lushis, 417 N.J. Super. 648, 653 (App. Div. 2011) (requiring the joinder of "'all causes, claims, and defenses related to a controversy'") (quoting Cogdell, supra, 116 N.J. at 16). The doctrine "embodies the principle that the adjudication of a legal controversy should occur in one litigation in only one court; accordingly, all parties involved in a litigation should at the very least present in that proceeding all of their claims and defenses that are related to the underlying controversy." Cogdell, supra, 116 N.J. at 15.3 "That mandate encompasses not only matters actually litigated but also other aspects of a controversy that might have been litigated and thereby decided in an earlier action." Archbrook Laguna, LLC v. Marsh, 414 N.J. Super. 97, 105 (App. Div. 2010) (citing Vision Mortg. Corp. v. Patricia J. Chiapperini, Inc., 307 N.J. Super. 48, 52 (App. Div. 1998), aff'd, 156 N.J. 580 (1999)).

"[T]he applicability of the entire controversy doctrine chiefly turns on whether the separately-asserted claims 'arise from related facts or the same transaction or series of transactions.'" Archbrook, supra, 414 N.J. Super. at 105 (quoting DiTrolio v. Antiles, 142 N.J. 253, 267 (1995)). In DiTrolio, supra, the Court held that a litigant should assert claims in a suit if "after final judgment is entered, [the parties will] likely . . . have to engage in additional litigation to conclusively dispose of their respective bundles of rights and liabilities that derive from a single transaction or related series of transactions." 142 N.J. at 268.

Here, plaintiff's prerogative writs complaint challenging the Board's denial of his use variance application named the very same defendants as did his subsequent action in March 2010, which asserted claims against these defendants arising from the identical subject matter of the earlier litigation. All defendants, save the Board, were dismissed from the former action because they were either immune from plaintiff's claim or not involved in the denial of plaintiff's use variance application. Plaintiff never appealed the order of dismissal. Given that the dismissal was without prejudice, nothing prevented plaintiff from amending his prerogative writs complaint to bring additional claims against these same defendants whom he later sued in a separate action.

In other words, prior to dismissal of these defendants, and prior to the eventual dismissal of his prerogative writs complaint against the Board as the sole remaining defendant, plaintiff could have asserted any new claims arising out of the Board's denial of plaintiff's use variance application by amending his complaint in the prerogative writs action, which he clearly did not do. In fact, at the June 11, 2010 hearing on the Board's motion to dismiss, plaintiff failed to demonstrate anything new giving rise to a cause of action against defendants following his complaint in the previous action. Rather, plaintiff simply argued that he was now before the court for damages, after being unsuccessful in his action in lieu of prerogative writs. Because plaintiff's most recent claims arise from the very same subject matter of his prerogative writs action, and because that action disposed of the matter on its merits and provided plaintiff adequate remedies to satisfy the requirements of due process, Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, 378-79, cert. denied, 519 U.S. 911, 117 S. Ct. 275, 136 L. Ed. 2d 198 (1996), plaintiff's latest Law Division action is barred by principles of entire controversy, Kaselaan & D'Angelo Assocs., Inc. v. Soffian, 290 N.J. Super. 293, 299 (App. Div. 1996), and collateral estoppel, Olivieri v. M.F. Carpet, Inc., 186 N.J. 511, 521-22 (2006).

III

Lastly, plaintiff argues that the court erred in its July 23, 2010 order awarding counsel fees of $5000 to defendants in the latter action. We agree.

Pursuant to N.J.S.A. 2A:15-59.1a(1), "[a] party who prevails in a civil action, either as plaintiff or defendant, against any other party may be awarded all reasonable litigation costs and reasonable attorney fees, if the judge finds at any time during the proceedings or upon judgment that a complaint, counterclaim, cross-claim or defense of the non-prevailing person was frivolous." In order to find that a complaint was frivolous,

the judge shall find on the basis of the pleadings, discovery, or the evidence presented that either:

 

(1) The complaint, counterclaim, cross-claim or defense was commenced, used or continued in bad faith, solely for the purpose of harassment, delay or malicious injury; or

 

(2) The nonprevailing party knew, or should have known, that the complaint, counterclaim, cross-claim or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.

 

[N.J.S.A. 2A:15-59.1b.]

Thus, a finding of frivolousness supporting an award of attorneys' fees turns on the existence or absence of a reasonable good faith belief in the merits of an action. J.W. v. L.R., 325 N.J. Super. 543, 548 (App. Div. 1999); K.D. v. Bozarth, 313 N.J. Super. 561, 574-75 (App. Div.), certif. denied, 156 N.J. 425 (1998).

Here, the trial court found that plaintiff's action commenced in March 2010 was "identical to that same chain of events heard before. . . ." Absent from this reasoning, however, is any finding by the motion judge that plaintiff instituted the March 2010 complaint in bad faith or with knowledge that the complaint was without any reasonable basis in law or equity. The fact that the claims raised in plaintiff's subsequent action arise from the same subject matter of earlier litigation does not satisfy the statutory standard. Therefore, lacking any basis in fact that the March 2010 complaint was "frivolous" within the meaning of N.J.S.A. 2A:15-59.1b, the court erred in awarding counsel fees to defendants.

T

he orders of April 16, 2010 and June 11, 2010 are affirmed. The order of July 23, 2010 is reversed.

1 Plaintiff also named as defendants the Borough of North Plainfield (Borough), individual Board members, the Board's attorney, clerk and engineers, and the Planning Board. The Law Division dismissed the complaint against all these defendants, save the Planning Board, finding them either immune from suit or not involved in denying plaintiff's application. A subsequent order of the Law Division dismissed the complaint against the Planning Board, an entity separate and apart from the Zoning Board of Adjustment (Board), leaving the Board as the sole remaining defendant.

2 The December 29, 2008 complaint was actually plaintiff's second complaint. Initially, plaintiff filed a complaint in April 2008, which the court dismissed on June 23, 2008 as premature because plaintiff had not yet filed an application for a use variance with the Board. Plaintiff subsequently filed a motion to restore his complaint, which the court denied on December 22, 2008.

3 The entire controversy doctrine no longer requires "the joinder of all parties with a material interest in the controversy." Sklodowsky, supra, 417 N.J. Super. at 653 (citing Cogdell, supra, 116 N.J. at 26). Specifically, the court rules pertaining to the entire controversy doctrine were amended in 1998 to eliminate mandatory joinder of parties. Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 4:30A (2011). "Rule 4:5-1(b)(2) presently requires that notice of a pending action be given to persons whose participation in the action is required for a just adjudication, as provided in Rule 4:28-1(a), or to persons who may be subject to an order entered pursuant to Rule 4:29-1(b) compelling their joinder in an action because of potential liability arising from the same transactional facts." Sklodowsky, supra, 417 N.J. Super. at 654.