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/crossrespondents pro se.

NOT FOR PUBLICATION WITHOUT THE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.
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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 nonconforming 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 twentythree 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 Ralph1for 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 twelvepage 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 opinion,

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 
11 A-2339-18T4

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.