July 3, 2012
JESSE ROSENBLUM, PLAINTIFF-APPELLANT,
CLOSTER PLANNING BOARD AND TEMPLE EMANU-EL, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7880-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 31, 2012
Before Judges Espinosa and Kennedy.
Plaintiff appeals from a judgment dismissing his action in lieu of prerogative writs against defendants and from an order granting defendants' applications for costs and counsel fees. In his complaint, plaintiff contended that the Closter Planning Board (Board) improperly granted an application for amended preliminary and final site plan and conditional use approval filed by defendant Temple Emanu-El (Temple) with respect to its property on Piermont Road in Closter.
Plaintiff's complaint asserted that the Temple's "valet parking plan has never been fully implemented . . . and is unworkable without trained valets actually parking the vehicles and taking keys" (count one); that "the Temple erected a metal fence extending 50 feet beyond their property and across [an unimproved municipal right of way]" thereby "aggrandizing [its] property" to the detriment of neighboring properties (count two); and that the Temple failed to secure variances required by its proposed "new storage space" and "nonconforming side yards" (count three). The trial judge entered a final pre-trial order on October 8, 2010, identifying the issues to be determined at trial as follows: whether the Board acted "arbitrarily, capriciously, and/or unreasonably" in granting the Temple's application and whether plaintiff's complaint was barred by the doctrines of res judicata, estoppel and
On December 10, 2010, trial was conducted and on February 25, 2011, Judge Alexander H. Carver III issued a comprehensive written opinion in which he made detailed findings of fact and concluded that each of plaintiff's claims had been the subject of prior complaints filed by plaintiff and had been decided against him. Consequently, he found that plaintiff's claims were barred by the doctrine of res judicata. Judge Carver also determined that the Board had not acted arbitrarily, capriciously or unreasonably in granting the Temple's application and entered judgment dismissing plaintiff's complaint.
The Temple and the Board subsequently moved for counsel fees and costs pursuant to N.J.S.A. 2A:15-59.1 and Rule 1:4-8, respectively. Judge Carver granted the applications and on June 10, 2011, entered an order granting $53,774.45 in fees and costs to the Temple and $8,329.13 in fees and costs to the Board.
This appeal followed.
Plaintiff has filed many complaints against the Borough of Closter, its Planning Board and the Temple over the years. In fact, plaintiff has been barred since 1995 by an order of the Law Division, Bergen County, from filing any civil complaint without first obtaining judicial approval. Apparently, the order was entered because plaintiff had filed many frivolous civil complaints, mostly against the Borough of Closter, where he resides. Rosenblum v. Borough of Closter, 333 N.J. Super. 385, 387 (App. Div. 2000). We advert to this fact because it bears, to a degree, on the issues raised in this appeal.
The Temple operates a religious school, a banquet hall, and a synagogue on its fourteen acre property on Piermont Road in Closter. In 1995 the Temple received preliminary site plan and conditional use approval for the structure that presently exists on the property. The Temple received final site plan approval in 1998. The Board's 1998 resolution granting final site plan approval declared that parking for 185 vehicles was "sufficient and acceptable", and that the Temple would be required to institute a valet parking plan with an additional 93 parking spaces for the three calendar days comprising the "High Holy Days," for a total of 278 spaces.
Thereafter, the Board approved amendments to its prior conditional use and final site plan approval reducing the permanent parking and valet parking plans to 266 spaces. The amendments were made at the request of the Closter Police and Fire Departments and the Board explicitly found that the reductions were without any "negative consequence."
Also, the Board later granted amended conditional use and final site plan approval permitting the Temple to operate a preschool on the property. The Board found, among other things, that the preschool "does not increase the parking demand for the site."
On July 12, 2001, plaintiff filed a complaint against the Temple and the Borough of Closter (Borough) challenging various aspects of the Temple's use of its property and the Borough's actions with respect thereto. Rosenblum v. Borough of Closter and Temple Emanu-El, Docket No. L-6025-01. The complaint asserted that the Temple's underground drainage system violated setback requirements and the third count of the complaint explicitly asserted that the "Temple did not implement the valet plan" required by the Board's resolutions pertaining to conditional use and final site plan approval.
The trial judge dismissed plaintiff's complaint and explained that the setback challenge was a "dead issue" because the time for challenging that issue expired in "1995 or 1996" when the initial approvals were granted and that plaintiff's assertions about the valet plan were without merit. This was not plaintiff's final action against the Temple, however.
On September 24, 2002, plaintiff filed another action against the Borough and the Temple. Plaintiff asserted, among other things, that the Temple had not complied with a required landscaping plan (count one); that the Temple had installed a metal fence "across Hartford Blvd . . . . which denies access to the street and elsewhere" (count two); and that the valet parking plan was improper and flawed (count five).
Following trial on the action, the trial judge dismissed plaintiff's complaint with prejudice. With respect to the fence across the "right of way of an unopened, unimproved, unused paper street known as Hartford Boulevard[,]" the trial judge found that the Borough had required the fence to be installed as a safety measure and that the Temple "voluntarily" complied with the Borough's determination. The trial judge had earlier dismissed plaintiff's challenges to the valet parking plan pursuant to Rule 4:37-2(b). On a motion for reconsideration, the trial judge observed, "this must be the fourth or fifth time this question [on valet parking] has come up. It was litigated earlier . . . it came up at this trial, and now it [has] come up again . . . ." The trial judge found plaintiff again had not supported his challenges to the valet plan with any evidence.
On April 13, 2010, the Temple filed an application with the Board to reconfigure the floor space in its building and to construct a 612 square-foot storage space addition along the northeast corner of the building. The Temple's proposal would have reduced the available parking spaces from 266 spaces to 263 spaces, and the Temple's traffic engineer testified that the application would not create any need for additional parking because the Temple has "more than sufficient parking within this facility for a typical day[.]"
After considering the testimony before it, including testimony from the Temple's architect and engineer, in addition to the traffic engineer, the Board approved the application on June 2, 2010, and on August 4, 2010, adopted an eleven-page resolution setting forth its findings and conclusions.
In his opinion dismissing plaintiff's complaint, Judge Carver explained:
The Court finds that all of the elements required for Plaintiff's claims as to the valet parking, fence, [and] side yard, to be barred by the doctrines of res judicata have been met.
That leaves only the matter of the Plaintiff's challenge to the unanimous approval granted on June 2, 2010, by the Closter Planning Board.
The Board heard from two fact and three expert witnesses in support of the application, and from the Plaintiff in opposition. The Temple's witnesses supplied all of the necessary testimony to support the grant of the Temple's latest application. Conversely, the Plaintiff presented no witnesses other than himself, and his testimony was inconsequential, to be charitable. The Temple's application was modest, if not minimal, and well supported by the offered lay and expert testimony.
He added that, considering the proofs at trial, "there was not a hint that the Closter Planning Board acted in an arbitrary, capricious or unreasonable manner in granting the Temple's
[a]pplication. Rather, its action was firmly set on a solid foundation of competent lay and expert testimony."
On appeal, plaintiff asserts the following arguments:
I. THE BOARD RESOLUTION SHOULD BE FOUND NULL AND VOID AB INITIO.
II. UNRESOLVED DIFFERENCES BETWEEN THE PARTIES WERE OVERLOOKED AND THEY STILL REQUIRE ADJUDICATION.
III. THE TRIAL COURT ISSUED A FAULTY OPINION.
IV. IMPOSING RES JUDICATA WAS BOTH PREMATURE AND INAPPROPRIATE.
V. IN RETROSPECT, A THOROUGH REVIEW OF THIS ACTION BY THE TRIAL JUDGE WOULD HAVE FOUND THE IMPOSITION OF MONEY SANCTIONS TO BE UNJUSTIFIED.
We find these arguments to have insufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and affirm essentially for the reasons set forth by Judge Carver in his comprehensive written opinion of February 25, 2011, and his subsequent findings and conclusions pertaining to counsel fees. We add only the following comments.
We use the same standard as the trial court in reviewing a planning board's decision. Cohen v. Bd. of Adjustment of the Borough of Rumson, 396 N.J. Super. 608, 614-15 (App. Div. 2007) (citing New York SMSA, Ltd. P'ship v. Bd. of Adjustment, Twp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004)). Like the trial court, our review of a planning board's decision is limited. Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998). We give deference to a planning board's decision and reverse only if its action was arbitrary, capricious, or unreasonable. Zilinsky v. Zoning Bd. of Adjustment of Verona, 105 N.J. 363, 367 (1987); Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965).
We find nothing in the record to suggest that the Board acted arbitrarily, capriciously or unreasonably in considering and ruling upon the Temple's application. The findings and conclusions of the Board are well supported by the evidence adduced at the hearing.
Further, we agree with the trial judge that plaintiff's challenges to the Board's actions consist entirely of claims earlier raised by plaintiff and rejected by the trial court in prior actions. Res judicata, or claim preclusion, prevents the re-litigation of claims that have already been resolved, and seeks thereby to protect the integrity of judgments and to prevent the harassment of parties. Velasquez v. Franz, 123 N.J. 498, 505 (1991); Watkins v. Resorts Int'l Hotel & Casino, 124 N.J. 398, 409 (1991). This exclusionary principle is inapplicable, however, unless three elements are met:
(1) the judgment in the prior action must be valid, final, and on the merits; (2) the parties in the later action must be identical to or in privity with those in the prior action; and (3) the claim in the later action must grow out of the same transaction or occurrence as the claim in the earlier one. [Watkins, supra, 124 N.J. at 412.]
These elements are clearly present here and therefore Judge Carver properly invoked the doctrine to prevent plaintiff from utilizing the Temple's most recent application before the Board as a vehicle to raise issues already decided against him.
Lastly, we perceive nothing to suggest that the trial court's allowance of counsel fees and costs constituted an abuse of discretion. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-44 (2001); United Hearts, L.L.C. v. Zahabian, 407 N.J. Super. 379, 390 (App. Div.), certif. denied, 200 N.J. 367 (2009).
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