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Stop & Shop Supermarket Co., LLC v. County of Bergen

Superior Court of New Jersey, Appellate Division

June 14, 2017

THE STOP & SHOP SUPERMARKET COMPANY, LLC, Plaintiff-Appellant/ Cross-Respondent,
v.
THE COUNTY OF BERGEN; THE BERGEN COUNTY PLANNING BOARD; AND THE COUNTY OF BERGEN DEPARTMENT OF PLANNING AND ECONOMIC DEVELOPMENT, Defendants-Respondents/ Cross-Appellants. THE STOP & SHOP SUPERMARKET COMPANY, LLC, Plaintiff-Appellant,
v.
THE BERGEN COUNTY BOARD OF CHOSEN FREEHOLDERS, THE BERGEN COUNTY PLANNING BOARD, AND INSERRA SUPERMARKETS, INC., Defendants-Respondents.

          Argued November 9, 2016

          Decided April 6, 2017

         On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket Nos. L-7943-14 and L-9333-14.

          John R. Edwards, Jr. argued the cause for appellant (Price, Meese, Shulman & D'Arminio, P.C., attorneys; Mr. Edwards, Gail L. Price, Kathryn J. Razin, and David J. Reich, on the briefs).

          Frank P. Kapusinski, Assistant Bergen County Counsel, argued the cause for respondents the County of Bergen, the Bergen County Planning Board, and the County of Bergen Department of Planning and Economic Development (Julien X. Neals, County Counsel, attorney; Mr. Kapusinski, of counsel and on the briefs).

          Edward J. Florio argued the cause for respondent the Bergen County Board of Chosen Freeholders (Florio, Kenny, Raval, L.L.P., attorneys; Mr. Florio, of counsel and on the brief; Paul Samouilidis, on the brief).

          John J. Lamb argued the cause for respondent Inserra Supermarkets, Inc. (Beattie Padovano, LLC, and Wells Jaworski Liebman, LLP, attorneys; Mr. Lamb, Ira E. Weiner, and James E. Jaworski, of counsel and on the brief; Daniel L. Steinhagen, on the brief).

          Before Judges Ostrer, Leone, and Vernoia.

          OPINION

          LEONE, J.A.D.

         Plaintiff the Stop & Shop Supermarket Company, LLC (Stop & Shop) opposed the site plan application of defendant Inserra Supermarkets, Inc. (Inserra) for the construction of a ShopRite supermarket along a county road. Stop & Shop objected to the application before defendant the Bergen County Planning Board (County Planning Board) and then appealed its approval of the site plan to defendant the Bergen County Board of Chosen Freeholders (Board of Freeholders). When the Board of Freeholders affirmed, Stop & Shop filed a complaint in lieu of prerogative writs in the Law Division, which affirmed on May 12, 2015. Stop & Shop challenges that decision in appeal A-4630-14.

         Stop & Shop filed an action for declaratory relief against the County Planning Board, defendant the County of Bergen (County), and defendant the County of Bergen Department of Planning and Economic Development (DPED) (collectively the "OPRA defendants"). Stop & Shop alleged a violation of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. The Law Division dismissed that action on November 26, 2014. Stop & Shop challenges that decision in appeal A-2134-14. We hold that OPRA litigation is authorized to allow a party who is denied access to records to obtain access to those records, and counsel fees are authorized under OPRA if the litigation causes the production of those records. Because Stop & Shop had already obtained the records before it filed its declaratory judgment action, that action was moot and it is not entitled to counsel fees.

         We listed the two appeals back-to-back and now consolidate them for the purpose of this opinion. We affirm.

[At the direction of the court, the published version of this opinion omits the discussion of appeal A-4630-14, including Part I (which sets forth the facts relevant to that appeal) and Part II (which affirms the trial ...

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