E. JOHN PENNINGTON, III v. PLANNING BOARD OF THE BOROUGH OF MONMOUTH BEACH
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3322-16T4
E. JOHN PENNINGTON, III,
Plaintiff,
and
TARA MERCOGLIANO AND JOHN
MERCOGLIANO,
Plaintiffs-Respondents,
v.
PLANNING BOARD OF THE BOROUGH
OF MONMOUTH BEACH,
Defendant-Appellant,
and
BOROUGH OF MONMOUTH BEACH,
ZONING BOARD OF ADJUSTMENT
OF THE BOROUGH OF MONMOUTH
BEACH, UNIFIED LAND USE BOARD
OF THE BOROUGH OF MONMOUTH
BEACH (DBA PLANNING BOARD
OF THE BOROUGH OF MONMOUTH
BEACH), BENJAMIN MANN, JR., and
ESTATE OF BENJAMIN MANN, SR.,
DECEASED,
Defendants.
_____________________________________________
Submitted February 26, 2018 – Decided May 3, 2018
Before Judges Messano and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Docket No. L-
3065-14.
Michael A. Irene, Jr., attorney for appellant.
Post, Polak, Goodsell & Strauchler, PA,
attorneys for respondents (Anne L. H.
Studholme, of counsel and on the brief).
PER CURIAM
The Planning Board of the Borough of Monmouth Beach (Board)
appeals the Law Division's March 10, 2017 final judgment that: 1)
reversed the Board's June 24, 2014 resolution dismissing the
development application of plaintiffs Tara and John Mercogliano1
as res judicata; 2) remanded the matter to the Board to "hear the
application 'on the merits'"; and 3) dismissed plaintiffs'
complaint.2 We set forth the procedural and factual history to
place the arguments now raised in context.
This is the second time we consider an appeal involving the
property in question. Our decision in Colao v. Zoning Board of
1
Plaintiffs are contract purchasers from plaintiff Pennington.
2
After the appeal was submitted on February 26, 2018, we asked
whether the remand hearing, ordered nearly twelve months earlier
and not stayed by any judicial order, had occurred. The Board's
counsel advised there have been no further proceedings before the
Board.
A-3322-16T4
2
Monmouth Beach, No. A-4020-90 (App. Div. Dec. 19, 1991)3, explained
the unusual history of the lot in question, which was an undersized
lot then, and remains so under the municipality's zoning
regulations. Id. at 2. In 1984, the Board denied an application
by plaintiff Pennington's predecessors in title for bulk variances
pursuant to
N.J.S.A. 40:55D-70(c)(1) and (c)(2) ((c) variances).
4 Id. at 1-2.
In 1990, the Board considered an application filed by James
and Ellen Colao, and Monmouth Beach Estates, Inc., again seeking
(c) variances to build a house on the lot. Id. at 1. The Board
denied the request "based upon res judicata and upon the . . .
conclusion plaintiffs had failed to establish entitlement to a
variance." Id. at 2. The plaintiffs filed suit, and we affirmed
the trial court's affirmation of the Board's action, concluding,
3
Although citing an unpublished opinion is generally forbidden,
we do so here to provide a full understanding of the issues
(footnote continued next page)
(footnote continued)
presented and pursuant to the exception in Rule 1:36-3 that permits
citation "to the extent required by res judicata, collateral
estoppel, the single controversy doctrine or any other similar
principle of law." See Badiali v. N.J. Mfrs. Ins. Grp.,
429 N.J.
Super. 121, 126 n.4 (App. Div. 2012), aff'd,
220 N.J. 544 (2015).
4
An applicant seeking a (c)(1) variance "must establish that the
particular conditions of the property present a hardship." Ten
Stary Dom P'ship v. Mauro,
216 N.J. 16, 29 (2013). 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." Id. at 30 (citing Kaufmann v. Planning Bd. Twp.
of Warren,
110 N.J. 551, 562 (1988)).
A-3322-16T4
3
without deciding whether res judicata applied, that "the variance
was properly denied on the merits." Id. at 2, 11.
On January 31, 2014, plaintiffs filed an application
requesting (c) variances to construct a single-family house. The
application sought relief from the minimum lot area required by
the zoning regulations (15,000 square feet, with the property
being only 7,500 square feet), and minimum lot width (100 feet,
with the property being 50 feet). The Board held a public hearing
on May 27, 2014.
In prefatory comments that focused on prior applications, of
which plaintiffs were unaware when they submitted this
application, the Board's counsel told the Board:
[W]e have to deal with [res judicata] first.
We give the Applicant the opportunity to
present whatever they have on the issue of res
judicata and not getting into the merits of
the application.
On its face, it's a problem. The Board
can ask whatever questions they like. When
you are done with that, . . . if you find the
Doctrine of Res Judicata applies and bars the
Board from hearing the application on the
merits, the matter would be dismissed. If you
find that the Doctrine of Res Judicata does
not apply then you would proceed to hear the
merits of the application. As part of that,
we have to get into some of the issues as a
merger.
. . . .
This is a legal issue. The Board doesn't
have any discretion to waive the principles
A-3322-16T4
4
of res judicata. . . . [I]t's supposed to
[ac]cord finality to a decision. It's
supposed to pre[v]ent multiple bites of the
apple. No one is suggesting [the applicants]
knew about this. It took us some time to find
it, because all of the difficulties we've
found because of [Super Storm Sandy].
. . . .
The property owners now stand in the same
shoes of those who acted back then. That's
what [the Board has] to keep in mind.
[(emphasis added).]
When one Board member inquired about plaintiffs seeking relief
from a "self-created hardship," counsel advised that the Board
need not "get[] in" to that issue unless it reached the merits of
the application. Counsel identified "four criteria" contained in
his earlier letter to the Board that determined whether res
judicata barred consideration of the application on its merits.
Marc C. Leber, a licensed planner and certified municipal
engineer, testified on plaintiffs' behalf, noting differences
between the zoning regulations in 1990 and 2014, and changes to
conditions surrounding the property. Although plaintiffs offered
the testimony of owners of neighboring properties, who were
presumably in favor of the application, to support an argument
that surrounding circumstances had changed, the Board did not
permit the testimony. Counsel advised the Board, "The issue is
A-3322-16T4
5
whether this application is substantially similar to the one
before."
Pennington testified that he was aware when he purchased the
lot that he would need a bulk variance, but he was unaware that
he would be bound by prior applications. He stated that the
undersized lot was "created by" the municipality. When one of the
Board members questioned Pennington's assertion, claiming the
undersized lot was created by a subdivision, Board counsel said,
"Hold on. Time out. . . . [I]t's not clear from the title search
whether this lot was a product of a subdivision or not. We don't
know. . . . [T]hat's something that if we get to the merits, we
may have to get into."
Leber attempted to bring to the Board's attention that its
refusal to consider the merits of plaintiff's application rendered
the property inutile, citing Nash v. Board of Adjustment of Morris
Township,
96 N.J. 97 (1984).5 The Board's counsel advised, "Nash
was not a res judicata case."
The Board's counsel framed the resolution for a vote:
"Whether or not the Board is barred by the [d]octrine of [r]es
[j]udicata of proceeding on the merits as a result of the criteria
5
We express no opinion as to whether Nash had relevance to the
application.
A-3322-16T4
6
we discussed." The resolution passed by a six to two vote.6 In
its memorializing resolution, the Board found:
[T]he subject property is the same property
that was in question in the prior
matters . . . in 1984 and 1990. The Board
finds that the Zoning Board denied the
respective 1984 and 1990 applications on the
merits. As reflected in the 1990 Resolution,
the Board finds that the 1990 application and
the current application are the same; both
pertain to the proposed development of the
vacant, undersized lot at issue with a
conforming single-family dwelling. The Board
finds that the same parties, or their privies
are at issue, and the Board notes that in 1990
as now, the applicants were contract-
purchasers of the subject property. The
dimensions of the property remain the same as
in 1990. The zone remains the same. The lot
dimensions required in the zone remain the
same. The Board finds that there has been no
significant change in the conditions
surrounding the property. The Board rejects
the assertion . . . to the contrary, and finds
that the changes cited . . . are minor in
nature and not dispositive on the issue of the
applicability of the doctrine of res judicata.
Indeed, even if the proposed house may be
different from the dwelling proposed in 1990,
the Board finds that same is of no moment,
since each application involved a conforming
dwelling. The Board finds that the relief
that was denied in 1990 is the exact same
relief sought by the applicant today.
As a result . . . , the Board finds that
the 1990 application was denied on the merits
(as was the "similar" application in 1984).
The Board further finds that the 1990
application and the current application
6
One Board member who voted affirmatively stated: "I don't think
legally we can hear this." Another who voted affirmatively said:
"I don't think we can hear it."
A-3322-16T4
7
pertain to the same property, require the
exact same relief, involve the same parties
or their privies, and that the circumstances
and conditions surrounding the subject
property remain substantially unchanged. As
a result of all the facts and circumstances
here at issue, the Board further finds that
the doctrine of res judicata bars
consideration of the subject application on
the merits, and the Board hereby dismisses the
application as a result thereof.
Plaintiffs appealed to the Law Division. In an oral opinion,
Judge Lisa P. Thornton reasoned that whether res judicata barred
consideration of plaintiffs' new application depended upon whether
there was "a sufficient change in the application itself or in the
conditions surrounding the property to warrant entertainment of
the matter again." (citing Park Ctr. at Route 35, Inc. v. Zoning
Bd. of Adjustment Twp. of Woodbridge,
365 N.J. Super. 284, 291
(App. Div. 2004) (quoting Allied Realty, Ltd. v. Upper Saddle
River,
221 N.J. Super. 407, 414 (App. Div. 1987))). Although the
Board "was under the impression that [it was] constrained to deny
plaintiffs' application based on [the Board's] prior variance
denials on the same lot," Judge Thornton concluded
res judicata is not to be applied rigidly and
the Board may grant a new hearing even in the
absence of changed circumstances if an
applicant presents good cause to warrant
reconsideration.
In the present case, plaintiffs argue
that the neighborhood in question was ravaged
by Superstorm Sandy[,] [a]nd that aesthetics
and promotion of a "desirable visual
A-3322-16T4
8
environment" are appropriate reasons to
consider the application anew.
The judge reversed and remanded the matter to the Board to
consider plaintiffs' application on its merits. Notably, the
order also provided:
[T]he Board is instructed to hear the
application "on the merits", and following a
full hearing regarding the application, the
Board may: (1) dismiss the application based
on res judicata; or, (2) if the Board finds
that res judicata does not bar a determination
on the merits, then, proceed to either grant
or deny the application on the merits, as the
case may be, based upon the facts and
circumstances at issue and applicable law.
The Board argues applying the doctrine of res judicata to
dismiss plaintiffs' application without consideration of its
merits was not arbitrary, capricious or unreasonable. We disagree
and affirm.
Like the trial court, we apply a highly deferential standard
of review to the Board's decisions, which "enjoy a presumption of
validity, and a court may not substitute its judgment for that of
the board unless there has been a clear abuse of discretion."
Price v. Himeji, LLC,
214 N.J. 263, 284 (2013) (citing Cell S. of
N.J., Inc. v. Zoning Bd. of Adjustment,
172 N.J. 75, 81 (2002)).
The Court recently explained what factors animate a land use
board's decision whether res judicata bars consideration of a
development application on its merits.
A-3322-16T4
9
If an applicant files an application similar
or substantially similar to a prior
application, the application involves the same
parties or parties in privity with them, there
are no substantial changes in the current
application or conditions affecting the
property from the prior application, there was
a prior adjudication on the merits of the
application, and both applications seek the
same relief, the later application may be
barred. It is for the Board to make that
determination in the first instance.
[Ten Stary Dom P'ship,
216 N.J. at 39 (citing
Bressman v. Gash,
131 N.J. 517, 527 (1993)).]
The Board's decision in this regard "should 'be overturned on
review only if it is shown to be unreasonable, arbitrary or
capricious.'" Bressman,
131 N.J. at 527 (quoting Russell v. Bd.
of Adjustment of Tenafly,
31 N.J. 58, 67 (1959)).
In Allied Realty, we said:
[T]he rule of res judicata does not bar the
making of a new application for a
variance . . . upon a showing that the
continued enforcement of the restriction would
frustrate an appropriate purpose. Changed
circumstances or other good cause may warrant
reconsideration by the local authorities. To
hold differently would offend public policy
by countenancing a restraint upon the future
exercise of municipal action in the absence
of a sound reason justifying such a static
approach. The question for the municipal
agency on a second application thus centers
about whether there has occurred a sufficient
change in the application itself or in the
conditions surrounding the property to warrant
entertainment of the matter again.
[
221 N.J. Super. at 414 (emphasis added)
(citations omitted).]
A-3322-16T4
10
"That [this] requirement be liberally construed in favor of the
applicant would be in accord with the purpose of boards of
adjustment to provide the necessary flexibility to the zoning
ordinance." Russell,
31 N.J. at 66.
Even in those cases where res judicata was applied
appropriately to a second application, our jurisprudence has
recognized a land use board's discretionary authority to decide
whether to apply res judicata, or not, based on whatever terms it
deems appropriate, including a full review of the application's
merits. See, e.g., Home Builders Ass'n v. Paramus,
7 N.J. 335,
339-342 (1951) (included second hearing on application and board's
view of the site); Charlie Brown of Chatham, Inc. v. Bd. of
Adjustment,
202 N.J. Super. 312, 319-20, 327 (App. Div. 1985)
(board heard full application).7
Although the "arbitrary, capricious, or unreasonable"
standard requires us to be "deferential" to the administrative
decision, the standard "does not lack content." In re Proposed
Quest Acad. Charter Sch.,
216 N.J. 370, 385 (2013). Indeed, in
considering if the agency's decision was arbitrary, capricious or
7
Indeed, although the Board's 1990 resolution denying Colao's
application is in the record, and although the Board applied res
judicata at that time based upon its denial of the earlier 1984
application, it also reached the merits of the 1990 application
after a full hearing.
A-3322-16T4
11
unreasonable, we inquire "whether the agency's action violates
express or implied legislative policies, that is, did the agency
follow the law." Id. at 385-86 (quoting Mazza v. Bd. of Trs.,
143 N.J. 22, 25 (1995)).
Here, the Board did not summarily apply res judicata, as did
the board in Allied Realty,
221 N.J. Super. at 414. However, our
review of the record before the Board convinces us, as it did
Judge Thornton, that the Board did not comprehend it possessed
broad discretionary authority to consider whatever testimony it
thought was appropriate and did not necessarily have to first
decide whether res judicata applied without hearing the merits of
plaintiffs' application. This included potential testimony
regarding changes in the surrounding community during the twenty-
four years since the last application was denied, the level of
support among surrounding property owners, who witnessed this lot
lay fallow for more than three decades, and Leber's testimony
regarding the lot's creation, i.e., whether its non-conformity
preceded enactment of the municipality's zoning regulations, and
what, if any, impact that may have upon the Board's decision to
ultimately grant a variance.8 See Fred McDowell, Inc. v. Bd. of
8
We note, without considering its implications, plaintiffs'
extensive argument in their complaint and before us regarding the
creation of the lot, and the issues of merger and self-created
hardship, see, e.g., Jock v. Zoning Bd. of Adjustment, 184 N.J.
A-3322-16T4
12
Adjustment Twp. of Wall,
334 N.J. Super. 201, 222 (App. Div. 2000)
("We deem it appropriate for the Board to have considered the
nature of development in the surrounding area since the zoning
ordinance, as well as the opportunity of neighboring property
owners to assess the apparent use of the subject property.");
Mazza v. Bd. of Adjustment of Linden,
83 N.J. Super. 494, 496
(App. Div. 1964) (emphasis added) (board has discretion to reject
res judicata "[e]ven if the application is closely similar to a
previous one, or identical with it but it is alleged that the
surrounding circumstances have changed or that experience has
shown the prior denial was error").
Affirmed.
562, 590-91 (2005), and their contention that the prior
application(s) failed to correctly raise these issues.
A-3322-16T4
13
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