SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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RALPH HOLT and DEANNA HOLT,
Plaintiff s
- Appellants / Cross

- Respo ndents ,

v. UPPER TOWNSHIP ZONING BOARD OF ADJUSTME N T , PAUL DIETRICH, MUNICIPAL ENGINEER , and DEAN MARCOLONGO, BOARD SOLICTOR,
Defendant s
- 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

- 0 157

- 17. Ralph Holt and Deanna Holt, appellant s /cross

respond ents pro se.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

- 3.2 A

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- 18T4 Madden & Madden, P A , attorneys for respondents (Matthew P aul M adden, of counsel and on the brief s ).
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 Boa rd) , Board Engineer Paul Dietrich , and Board Solicitor Dean Marcolongo

. D efen d a n t s

cross
- appeal , claiming the dismissal should be with prejudice. W e affirm

. I
This suit arises from a conditional use variance to expand a non

conforming use granted to the Holt s by the Board in Resolution BA 12

- 15 , allow ing them to use the second floor of their retail/office/residential building (the property) for twenty seats ancillary to Ralph's B agel & D eli S hop , located
on th e 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 p arish " 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 because3 A

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they had not secur ed a lease agreement for a dditional parking

. When t he Holts disregarded Dietrich's warning and used the second floor for the event , a neighboring property owner , Wayne Jack , fil ed a complaint on November 8, 2016, against Ralph 1 for use of the second floor without an appropriate site plan approval.
T hereafter , parish Monsignor Peter Joyce sent the Board an undated memo

s t at ing the Holts' patrons could use the parish parking lot when it was not used by the paris h with the understanding the Holts will indemnify the parish from any claims arising from use of the p arking 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 th e earlier letter was prematurely sent before Marcolongo 's
final legal review as required by Resolution B A 12

- 15

. T he 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.4 A

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lease needed to be approved by the Board Solicitor prior to be ing submitted and
that it needed to s pecify 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

. T he State presented the testimony of Dietrich, Jack and his brother, Keith Jack

. Ralph did not testif

y and did not present any witness

. Following the testimony , t he court found Ralph guilty . The court determined the second floor of the Holts' property was used for an even t , an d reasoned the parish's letters 2 "d [id] not constitute a lease of parking space s [ , ] " in order to satisfy the condition al use variance to allow use of the second floor

. Ralph neither appeal ed 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 Marcol ongo , 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[.]"5 A

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within poorly drawn civil complaint , which the court viewed as a n action in lieu of prerogative writ s against the Board, Dietric h, and Marcolongo alleging t he 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, 20 1 7, 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 , dismiss ing the Holts' complaint without pr e judice

. The court determin ed the municipal court's decision finding Ralph guilty

" is not binding on the Board. If there i s a hea r ing

. . . [before] the Board regarding this matter, the Board can make an independent decision based on the applicable land use law and the evidence presented

. " T he court recognize d that
al though the Holts were self

- represented , they were fully aware of the l egal 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 par ish because

3 We do not to detail the prior procedural history, as it is not relevant to our decision.6 A

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they failed to timely exhaust all administrative remedies by not appeal ing 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
ga ve the Holts a roadmap on how to proceed, stat ing :

This ruling is without prejudice to [the Holts] refiling a petition for a permit with the [z] oning [o] fficer to obtain approval for u s e 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]o ning [o] fficer, the [z] oning [o] fficer denies the use of the second flo or 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. [ T he Holts] m a y 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 determ ination[.]" 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. "7 A

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- 18T4 opt to apply for a variance regarding the required parking. The Holts appealed to this court and defendants cross
- appealed.
II
We first address t he 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 di d 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] o ard [S]o licitor [,] 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 Dietric h, [M] unicipal [E] ngineer [,] used letters as an alternative parking plan which stopped the Holts from using their upstairs for additional seating.8 A

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- 18T4 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 . . . Boar d’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 raise d below) Parties may use an action in lieu of prerogative writ s " 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 o f their property

. T h e Holts ' failure to appeal Dietrich's letter to
the Board , as he advised them they had the right to do, did not allow the Board9 A

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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 a gency record." ) (internal
citation s 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 tha t 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 , R ule 2:11

- 3(e)(1)(E)

.10 A

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- 18T4 III. Turning to defendants ' cross
- appe al, 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 adjud ication that the Holts did not satisfy parking lease condition

. W e 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 (19 7 7) )

. C oll ateral 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 Fir e & 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 acknowledg es it w a s the Board's role, not the municipal court 's role , to determine if Marcolongo made the proper legal decision rejecting the Holts ' purported lease11 A

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agreement with the parish for additional parking spaces and conclud ing the
conditional use variance was not satisfied . Because the H olts failed to appeal
Marco longo 's rejection, the court properly found the Board never considered
whether the Holts complied with t he conditional use variance. Thus, res judicata and collateral estoppel do not apply because the B oard never consider e d 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.