THE STOP & SHOP SUPERMARKET COMPANY, LLC VS. THE COUNTY OF BERGEN THE STOP & SHOP SUPERMARKET COMPANY, LLC VS. THE BERGENCOUNTY BOARD OF CHOSEN FREEHOLDERS(L-7943-14 AND L-9333-14, BERGEN COUNTY AND STATEWIDE)(CONSOLIDATED) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2134-14T1
A-4630-14T1
THE STOP & SHOP
SUPERMARKET COMPANY, LLC,
Plaintiff-Appellant/
APPROVED FOR PUBLICATION
Cross-Respondent,
JUNE 14, 2017
v.
APPELLATE DIVISION
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
Before Judges Ostrer, Leone, and Vernoia.
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).
The opinion of the court was delivered by
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
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(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.
3 A-2134-14T1
[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 court's ruling in that appeal).
See R. 1:36-3.]
III.
We next consider appeal A-2134-14, concerning the dismissal
under Rule 4:6-2(e) of Stop & Shop's OPRA litigation. "When we
review a trial court's decision to dismiss a complaint under
Rule 4:6-2(e)," including for mootness, "our review is de novo."
Teamsters Local 97 v. State, 434 N.J. Super. 393, 413, 416 (App.
Div. 2014).
We summarize the facts detailed in the Law Division's
November 18, 2014 opinion. On July 7, 2011, Stop & Shop
submitted two OPRA request forms requesting various documents
relating to Inserra's site plan application. Stop & Shop
received responsive documents on August 8, 2011.
On June 26, 2014, Stop & Shop submitted another OPRA
request form requesting documents provided by Inserra relating
to its site plan application. On July 3, 2014, Stop & Shop
received additional responsive documents, including: a January
27, 2011 report to the Township Board where Inserra's
professional engineer, Jay Troutman, Jr., initially proposed a
traffic signal be installed at the intersection of Wyckoff and
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Greenwood Avenues; a June 30, 2011 e-mail in which a County
traffic engineer recommended against signalization due to
"conflicting movements and a railroad crossing" just south of
the intersection; and June 17, 2011 comments by the same
engineer stating "[a] corridor improvement with Railroad pre-
emption and signal coordination are required to be done before
adding any trips to the corridor" and that "[a] traffic impact
study of all the impacted intersections is required."
Stop & Shop wrote the Board of Freeholders advising it
received those documents and arguing the documents should have
been produced in response to its 2011 OPRA request. Stop & Shop
requested, and the Board agreed, to consider these documents,
which it admitted at its July 16, 2014 hearing. The Board
expressly stated it considered Stop & Shop's documents when it
approved Inserra's site plan application on August 20, 2014.
Two days before, on August 18, 2014, Stop & Shop filed a
complaint seeking a declaratory judgment "that [the OPRA]
Defendants violated Stop & Shop's rights under the Open Public
Records Act" and the common law right of access. Stop & Shop
also requested counsel fees. The OPRA defendants filed a motion
to dismiss pursuant to Rule 4:6-2(e). On November 26, 2014, the
Law Division granted the motion to dismiss, finding Stop &
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Shop's action was moot because it received the documents prior
to initiating its OPRA lawsuit. We agree.1
"Mootness is a threshold justiciability determination
rooted in the notion that judicial power is to be exercised only
when a party is immediately threatened with harm." Betancourt
v. Trinitas Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010).
"It is firmly established that controversies which have become
moot or academic prior to judicial resolution ordinarily will be
dismissed." N.J. Div. of Youth & Family Servs. v. W.F., 434
N.J. Super. 288, 297 (App. Div.) (quoting Cinque v. N.J. Dep't
of Corr., 261 N.J. Super. 242, 243 (App. Div. 1993)), certif.
denied, 218 N.J. 275 (2014). "'[F]or reasons of judicial
economy and restraint, courts will not decide cases in which the
issue is hypothetical, [or] a judgment cannot grant effective
relief[.]'" Cinque, supra, 261 N.J. Super. at 243 (citation
omitted).
Here, Stop & Shop's OPRA litigation was moot before it
filed its complaint because it already received the documents it
sought. Under OPRA's litigation provision, "[a] person who is
denied access to a government record by the custodian of the
1
The Law Division also found dismissal appropriate because the
complaint was "fatally time-barred" and because declaratory
judgment is not "a recognized or an authorized form of relief in
New Jersey" for a violation of OPRA. We need not reach these
issues as the action is moot.
6 A-2134-14T1
record, at the option of the requestor, may: institute a
proceeding to challenge the custodian's decision by filing an
action in Superior Court." N.J.S.A. 47:1A-6 (emphasis added).
"If it is determined that access has been improperly denied, the
court or agency head shall order that access be allowed." Ibid.(emphasis added). Here, access was allowed even before Stop &
Shop filed suit. See, e.g., Walsh v. U.S. Dep't of Veteran
Affairs, 400 F.3d 535, 536 (7th Cir. 2005) ("'[O]nce the
government produces all the documents a plaintiff requests, her
claim for relief under the FOIA becomes moot.'" (citation
omitted)).2
Stop & Shop argues this litigation is not moot because it
seeks counsel fees. Under OPRA's litigation provision, "[a]
requestor who prevails in any proceeding shall be entitled to a
reasonable attorney's fee." N.J.S.A. 47:1A-6. "To be entitled
to such counsel fees under OPRA, a plaintiff must be a
prevailing party in a lawsuit . . . that was brought to enforce
his or her access rights." Smith v. Hudson Cty. Register, 422
N.J. Super. 387, 393 (App. Div. 2011). This requires either (1)
records are disclosed "after the entry of some form of court
2
New Jersey courts often consider cases interpreting "OPRA's
federal counterpart, the Freedom of Information Act (FOIA), 5
U.S.C. § 552." See, e.g., Educ. Law Ctr. v. N.J. Dep't of
Educ., 198 N.J. 274, 284 (2009).
7 A-2134-14T1
order or enforceable settlement" granting access, or (2) "when a
government agency voluntarily discloses records after a lawsuit
is filed" and under the catalyst theory the plaintiff "can
establish a 'causal nexus' between the litigation and the
production of requested records" and "'that the relief
ultimately secured by plaintiffs had a basis in law.'" Mason v.
City of Hoboken, 196 N.J. 51, 57, 76-77, 79 (2008) (citation
omitted). Under the common law right of access, litigants must
make the same showing. Id. at 79.
Our Supreme Court in Mason refused to presume OPRA
litigants are entitled to counsel fees even when records are
produced after suit is filed. Id. at 78-79. The Court
emphasized such an entitlement could "upend the cooperative
balance OPRA strives to attain," give plaintiffs "an incentive
to file suit" to obtain "an award of attorney's fees," and give
agencies "reason not to disclose documents voluntarily." Id. at
78. "OPRA cases designed to obtain swift access to government
records would end up as battles over attorney's fees." Id. at
79.
Here, the OPRA defendants voluntarily produced the records
before Stop & Shop filed suit. Such voluntary disclosure would
be discouraged if Stop & Shop is allowed to file suit to obtain
counsel fees for records it has already received. In any event,
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Stop & Shop did not obtain a judgment or enforceable consent
decree granting it access to the records, and its filing of its
lawsuit did not cause the production of the already-produced
records. The Law Division properly found Stop & Shop not
entitled to attorneys' fees as "Stop & Shop is not the
prevailing party and this lawsuit was not the catalyst for its
receipt of the requested documents."
Notably, Stop & Shop did not allege the OPRA defendants
"knowingly and willfully violate[d]" OPRA and "unreasonably
denied access under the totality of the circumstances."
N.J.S.A. 47:1A-11(a). Nor did Stop & Shop sue for imposition of
the civil penalties which OPRA authorizes for such non-
disclosure. Ibid. Thus, Stop & Shop did not claim entitlement
to the remedy OPRA provides for such non-disclosure.
Stop & Shop's OPRA appellate brief also argues its OPRA
lawsuit is not moot because "[a] declaration in this lawsuit
that the documents should have been turned over earlier could
affect" its appeal of the Board of Freeholders' approval of
Inserra's site plan application, as Stop & Shop plans to argue
"the County's indefensible delay in producing the documents
deprived it of a fair hearing and due process of law." However,
Stop & Shop did not raise that argument in its subsequent
appellate brief in the site plan appeal. Moreover, a
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determination of whether there was an OPRA violation would be
unnecessary to resolve whether Stop & Shop received a fair
hearing and due process before the County Planning Board and the
Board of Freeholders. Furthermore, the Board of Freeholders
considered the documents in its de novo review, and we upheld
its approval of the site plan application after considering
those documents. Thus, this appeal is "moot" under OPRA and the
common law because the "decision sought in [this] matter, when
rendered, can have no practical effect on the existing
controversy." Redd v. Bowman, 223 N.J. 87, 104 (2015). Stop &
Shop argues we should review this moot case because "the issue
is of substantial importance, likely to reoccur, but capable of
evading review." Bd. of Educ. v. Kennedy, 196 N.J. 1, 18
(2008). However, none of those requirements are met here.
Stop & Shop cannot avoid the proscription against
litigating moot issues by bringing its action under the
Declaratory Judgment Act (DJA), N.J.S.A. 2A:16-50 to -62. The
DJA provides courts have the power to determine legal issues "in
a proceeding for declaratory relief, in which a judgment will
terminate the controversy or remove an uncertainty." N.J.S.A.
2A:16-52. However, a "court may refuse to render or enter a
declaratory judgment, when, if rendered or entered, it would not
10 A-2134-14T1
terminate the uncertainty or controversy giving rise to the
proceeding." N.J.S.A. 2A:16-61.
"[T]he remedy of a declaratory judgment is 'circumscribed
by the salutary qualification that the jurisdiction of the
courts may not be invoked in the absence of an actual
controversy.'" Finkel v. Twp. Comm., 434 N.J. Super. 303, 318
(App. Div. 2013) (quoting N.J. Tpk. Auth. v. Parsons, 3 N.J.
235, 240 (1949)). "[W]here the issue is moot, declaratory
judgment will not lie because of the absence of an actual
controversy." Pressler & Verniero, Current N.J. Court Rules,
comment 1.2 on R. 4:42-3 (2017); see Parsons, supra, 3 N.J. at
240. Because Stop & Shop received the records, its right to
receive them "is a moot issue," and it has no "entitlement to
proceed under the [DJA]." JUA Funding Corp. v. CNA Ins./Cont'l
Cas. Co., 322 N.J. Super. 282, 287 (App. Div. 1999); see
Cornucopia Inst. v. U.S. Dep't of Agric., 560 F.3d 673, 675-76
(7th Cir. 2009) (rejecting the argument that the "court remained
free to issue a declaratory judgment that [the agency] violated
FOIA" after the documents were produced).
Additionally, "[t]he right to relief under the DJA is
procedural in nature; it does not create substantive rights to
relief." In re N.J. Firemen's Ass'n Obligation to Provide
Relief Applications Under Open Pub. Records Act, 443 N.J. Super.
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238, 253 (App. Div. 2015), certif. granted, 224 N.J. 528 (2016).
"A party that lacks a statutory right of action under OPRA may
not obtain declaratory relief regarding its rights or
obligations under OPRA." Id. at 257.
Accordingly, we affirm the Law Division's ruling to the
extent it held Stop & Shop was not entitled to a declaratory
judgment in this moot litigation. We need not decide the OPRA
defendants' "cross-appeal that Stop & Shop lacks standing" to
raise the OPRA claim.
We affirm in appeal A-2134-14 and appeal A-4630-14.
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