On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket Nos. L-7-09 and L-299-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 12, 2011
Before Judges Parrillo, Grall and Alvarez.
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),*fn1 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 cafe 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-facade 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,*fn2 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.
We first address the following issues raised by plaintiff with regard to the April 16, 2010 order dismissing ...