                NOT FOR PUBLICATION WITHOUT THE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




                               2                         A-2134-14T1
(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




                                           4                                 A-2134-14T1
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    &




                                      5                                A-2134-14T1
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,




                                              8                                    A-2134-14T1
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




                                               9                                      A-2134-14T1
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.




                                              11                                          A-2134-14T1
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.




                                  12                         A-2134-14T1
