RALPH HOLT VS. UPPER TOWNSHIP ZONING BOARD OF ADJUSTMENT (L-0157-17, CAPE MAY COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2339-18T4
RALPH HOLT and
DEANNA HOLT,
Plaintiffs-Appellants/
Cross-Respondents,
v.
UPPER TOWNSHIP ZONING
BOARD OF ADJUSTMENT,
PAUL DIETRICH, MUNICIPAL
ENGINEER, and DEAN
MARCOLONGO, BOARD
SOLICTOR,
Defendants-Respondents/
Cross-Appellants.
____________________________
Submitted May 18, 2020 – Decided July 23, 2020
Before Judges Sumners and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Cape May County, Docket No. L-0157-17.
Ralph Holt and Deanna Holt, appellants/cross-
respondents pro se.
Madden & Madden, PA, attorneys for respondents
(Matthew Paul Madden, of counsel and on the briefs).
PER CURIAM
Plaintiffs Ralph Holt and Deanna Holt (collectively "the Holts") appeal
the Law Division's order dismissing their complaint without prejudice against
defendants Upper Township Zoning Board of Adjustment (the Board), Board
Engineer Paul Dietrich, and Board Solicitor Dean Marcolongo. Defendants
cross-appeal, claiming the dismissal should be with prejudice. We affirm.
I
This suit arises from a conditional use variance to expand a non-
conforming use granted to the Holts by the Board in Resolution BA 12-15,
allowing them to use the second floor of their retail/office/residential building
(the property) for twenty seats ancillary to Ralph's Bagel & Deli Shop, located
on the first floor. The variance required the Holts to obtain a lease agreement,
approved by the Board Solicitor, with the neighboring U.S. Post Office or Saint
Maximilian Kolbe Parish ("the parish" or "church") for a minimum of twenty-
three additional parking spaces for the Holt's patrons.
Before securing a lease agreement for additional parking, the Holts were
advised by email from Dietrich that he learned they were hosting a wellness
event at the property and cautioned them not to use the second floor because
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they had not secured a lease agreement for additional parking. When the Holts
disregarded Dietrich's warning and used the second floor for the event, a
neighboring property owner, Wayne Jack, filed a complaint on November 8,
2016, against Ralph1 for use of the second floor without an appropriate site plan
approval.
Thereafter, parish Monsignor Peter Joyce sent the Board an undated memo
stating the Holts' patrons could use the parish parking lot when it was not used
by the parish with the understanding the Holts will indemnify the parish from
any claims arising from use of the parking lot by their patrons. In response,
Dietrich sent Ralph a February 27, 2017 letter advising him the parking
conditions were satisfied and they could use the second floor of their property
subject to the continued use of the parish's parking lot.
The situation, however, changed when Dietrich sent Ralph a second letter
on March 6, rescinding his February 27 approval letter. In the March 6 letter,
Dietrich admitted the earlier letter was prematurely sent before Marcolongo's
final legal review as required by Resolution BA 12-15. The letter stated, "the
1
As plaintiffs share a surname, we refer to Ralph Holt by his first name for
convenience and with no disrespect intended.
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lease needed to be approved by the Board Solicitor prior to being submitted and
that it needed to specify that the church was providing 23 parking spaces . . . ."
The letter also advised Ralph he could appeal the decision to the Board within
twenty days, or "make an application to the [Board] for an amended site plan
approval."
Three days after Dietrich's letter, on March 9, the Wildwood Crest
municipal court conducted a trial regarding Jack's complaint against Ralph. The
State presented the testimony of Dietrich, Jack and his brother, Keith Jack.
Ralph did not testify and did not present any witness. Following the testimony,
the court found Ralph guilty. The court determined the second floor of the Holts'
property was used for an event, and reasoned the parish's letters2 "d[id] not
constitute a lease of parking spaces[,]" in order to satisfy the conditional use
variance to allow use of the second floor.
Ralph neither appealed the municipal court conviction nor Dietrich's
March 6 letter of non-compliance. Rather, on April 6, 2017, the Holts filed the
2
In addition to Monsignor Joyce's undated memo (referred to as a "letter" by
the municipal court) reviewed by Dietrich and Marcolongo, also admitted into
evidence was an April 9, 2013 letter by Monsignor Joyce to the Board stating
"our parish is willing to offer additional [parking] spaces per [the Holts'] need
during [their] hours of operation[.]"
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within poorly drawn civil complaint, which the court viewed as an action in lieu
of prerogative writs against the Board, Dietrich, and Marcolongo alleging the
rejection of the purported parking lease with the parish to satisfy the conditional
use variance was arbitrary, capricious, and unreasonable.
On the morning of November 28, 2017, the court conducted a hearing on
the Holts' challenge to the determination that their purported lease agreement
did not satisfy the Board's conditional use variance to use the second floor of
the property.3 Later that day, the court issued an order, together with a twelve-
page written decision, dismissing the Holts' complaint without prejudice.
The court determined the municipal court's decision finding Ralph guilty
"is not binding on the Board. If there is a hearing . . . [before] the Board
regarding this matter, the Board can make an independent decision based on the
applicable land use law and the evidence presented." The court recognized that
although the Holts were self-represented, they were fully aware of the legal
process having previously challenged two Board decisions related to the
property before the court. The court found the Holts were not in a position to
contest the rejection of their purported lease agreement with the parish because
3
We do not to detail the prior procedural history, as it is not relevant to our
decision.
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they failed to timely exhaust all administrative remedies by not appealing the
decision to the Board. The court did not leave the Holts without any prospect
of relief because it dismissed the complaint without prejudice. In fact, the court
gave the Holts a roadmap on how to proceed, stating:
This ruling is without prejudice to [the Holts] refiling a
petition for a permit with the [z]oning [o]fficer to
obtain approval for use of the second floor and for the
[z]oning [o]fficer to determine whether the [the Holts']
offsite parking plan meets the conditions of the . . .
Board as outlined in Resolution 12-15. In refiling for
this determination with the [z]oning [o]fficer, [the
Holts] may rely on all of the existing letters from [the
parish] allowing for offsite parking and any additional
letters or evidence [the Holts] may wish to provide. If
after reviewing the submissions by the [the Holts] to the
[z]oning [o]fficer, the [z]oning [o]fficer denies the use
of the second floor on the basis of lack of sufficient
offsite parking, then [the Holts] can appeal this decision
to the . . . Board within 20 days as required by N.J.S.A.
40:55D-72. If [the Holts] do file a timely appeal, a
hearing will take place before the . . . Board regarding
the decision of the [z]oning [o]fficer. At the hearing,
the Board [must] review all of the evidence presented
by the [Holts] and the [z]oning [o]fficer and make a
determination based on the evidence and in accordance
with land use law. [4] In the event the Board denies [the
Holts'] request, then based on that record below, [the
Holts] can appeal to this [c]ourt. [The Holts] may also
4
The court expressed "concerns regarding the [z]oning [o]fficer first
determining [the Holts] had fulfilled the condition of obtaining a lease for offsite
parking, but then rescinding this determination[.]" The court determined the
"issue can be better explained by developing a record below before the Board,
which is currently not available for this [c]ourt to address."
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opt to apply for a variance regarding the required
parking.
The Holts appealed to this court and defendants cross-appealed.
II
We first address the Holts' appeal, wherein they raise the following
arguments:
POINT I
Defendant[s'] attorney, Patrick Madden[,] made a false
statement in his closing about the Holts not applying
for a parking variance. The Holts did apply for a
parking variance. (Not raised below.)
POINT II
Defendant[s'] attorney, Patrick Madden, provided false
documents in his brief to [the] Superior Court. The
application Mr. Madden provided is not the same
application Dean Marcolongo, [B]oard [S]olicitor[,]
provided to [the] Superior Court dated December 4,
2012. Mr. Madden used Resolution BA 12-15 twice
instead of Resolution B[A] 15-12 which showed a bulk
variance for the number of parking spaces (thirty-nine
required). (Not raised below)
POINT III
The Holts applied for [a] parking variance with letters
approving parking from adjacent properties. Dean
Marcolongo, [B]oard [S]olicitor[,] and Paul Dietrich,
[M]unicipal [E]ngineer[,] used letters as an alternative
parking plan which stopped the Holts from using their
upstairs for additional seating.
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POINT IV
Mr. Dietrich is having a baby shower in his office at the
Upper Township Municipal Building. Other businesses
have parties at their facility without approvals but if the
Holts use their upstairs they are fined. The Holts[']
rights are violated plus the Holts have paid taxes on
their upstairs since 2001.
POINT V
[The court] denie[d] defendants’ [m]otion to dismiss
for failure to state a claim upon which relief can be
granted pursuant to R.4:6-2(e). [T]the court finds that
a cause of action is suggested by the fact, alleging
challenges of the . . . Board’s denial of [the Holt's]
permit. Defendant, Dean Marcolongo, [B]oard
[S]olicitor[,] became surrogate at same courthouse,
then [the court] dismissed the case a year later. A lot
of issues have been left un[re]solved. The Holts should
be compensated for their loss. (Not raised below)
Parties may use an action in lieu of prerogative writs "to seek 'review,
hearing and relief' in the Superior Court of all actions of municipal agencies."
Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, 378 (quoting N.J. Const.
art. VI, § 5, ¶ 4). In the matter before us, the Board did not take action on
Dietrich's letter to the Holts advising them they did not obtain a lease agreement
for additional parking as required by the conditional use variance to use the
second floor of their property. The Holts' failure to appeal Dietrich's letter to
the Board, as he advised them they had the right to do, did not allow the Board
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the opportunity to develop a record and make a decision. See Willoughby v.
Planning Bd. of Twp. of Deptford, 306 N.J. Super. 266, 273 (App. Div. 1997)
("[A] municipal . . . agency [decision] . . . is subject to review in the Law
Division in an action in lieu of prerogative writs[,] . . . and the Law Division's
review of the . . . decision must be based solely on the agency record.") (internal
citations omitted) (citing R. 4:69).
Absent a record, the court is unable to "set aside a municipal board
decision [because] it [was] shown to be arbitrary, capricious or unreasonable,
not supported in the evidence, or otherwise contrary to law." Rivkin, 143 N.J.
at 378. Because the parties' arguments were not presented to the Board, they are
matters outside the record that we cannot consider. See Schmidt v. Bd. of
Adjustment of City of Newark, 9 N.J. 405, 423 (1952); see also Peoples Tr. Co.
of Bergen Cty. v. Bd. of Adjustment, 60 N.J. Super. 569, 575-76 (App. Div.
1959) (stating "[j]udicial review of board of adjustment action is confined to the
record made before the local board"). Accordingly, we affirm substantially for
the thoughtful reasons given by the court, and we conclude the Holts' arguments
are without sufficient merit to warrant extensive discussion in a written opinio n,
Rule 2:11-3(e)(1)(E).
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III.
Turning to defendants' cross-appeal, they contend the court erred in
dismissing the Holts' complaint without prejudice because their claims are
barred by res judicata and collateral estoppel due to the municipal court's
adjudication that the Holts did not satisfy parking lease condition. We disagree.
Res judicata is a common law doctrine barring the re-litigation of claims
or issues that have already been adjudicated. See Tarus v. Borough of Pine Hill,
189 N.J. 497, 520 (2007). More specifically, collateral estoppel is "the 'branch
of the broader law of res judicata which bars re-litigation of any issue which was
actually determined in a prior action, generally between the same parties,
involving a different claim or cause of action.'" Ibid. (quoting State v. Gonzalez,
75 N.J. 181, 186 (1977)). Collateral estoppel applies where the party against
whom the doctrine is asserted must have been a party to the earlier proceeding
and "the issue to be precluded [must be] identical to the issue decided in the
prior proceeding." Winters v. N. Hudson Reg'l Fire & Rescue, 212 N.J. 67, 85
(2012) (quoting Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521 (2006)).
The court's dismissal of the Holts' claim without prejudice acknowledges
it was the Board's role, not the municipal court's role, to determine if
Marcolongo made the proper legal decision rejecting the Holts' purported lease
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agreement with the parish for additional parking spaces and concluding the
conditional use variance was not satisfied. Because the Holts failed to appeal
Marcolongo's rejection, the court properly found the Board never considered
whether the Holts complied with the conditional use variance. Thus, res judicata
and collateral estoppel do not apply because the Board never considered the
purported lease agreement.
Yet, even if we accept defendants' claim the Holts should be barred from
presenting the same lease agreement with the parish that the municipal court
found non-compliant with the conditional use variance, the Holts are allowed to
present a different lease agreement with the parish or a lease agreement with the
post office. Additionally, the Holts can seek relief from the Board of the
additional parking condition.
Affirmed.
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