                                NOT FOR PUBLICATION WITHOUT THE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-0037-17T3

H. CHRISTINA CHEN-OSTER
and MICHAEL OSTER,

          Plaintiffs-Appellants,

v.

THE ZONING BOARD OF
ADJUSTMENT OF THE
TOWNSHIP OF MIDDLETOWN,

     Defendant-Respondent.
____________________________

                    Argued October 29, 2018 – Decided January 11, 2019

                    Before Judges Messano and Rose.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Monmouth County, Docket No. L-0003-17.

                    Lawrence H. Shapiro argued the cause for appellants
                    (Ansell Grimm & Aaron, PC, attorneys; Lawrence H.
                    Shapiro and Andreas D. Milliaressis, on the briefs).

                    Gregory W. Vella argued the cause for respondent
                    (Collins, Vella & Casello, LLC, attorneys; Gregory W.
                    Vella, of counsel; Devon M. McKee, on the brief).
PER CURIAM

      The Municipal Land Use Law (MLUL) "permits a variance from a bulk or

dimensional provision of a zoning ordinance . . . when, by reason of exceptional

conditions of the property, strict application of a . . . provision would present

peculiar and exceptional practical difficulties or exceptional hardship to the

applicant." Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 29 (2013) (citing

N.J.S.A. 40:55D-70(c)(1)) (emphasis added). "Such exceptional conditions may

include the dimensions of the property, topographic conditions, or some other

extraordinary or exceptional feature unique to the property."       Ibid. (citing

N.J.S.A. 40:55D-70(c)(1)).

      "In addition, an applicant for a (c)(1) variance must satisfy the negative

criteria." Id. at 30 (citing Nash v. Bd. of Adjustment of Morris Twp., 96 N.J.

97, 102 (1984)). "The negative criteria require proof that the variance will not

result in substantial detriment to the public good or substantially impair the

purpose of the zoning plan." Ibid. (citing Nash, 96 N.J. at 102).

      In 2009, defendant Zoning Board of Adjustment of the Township of

Middletown (the Board) approved plaintiffs' development application, including

their request for variances from height and side yard setback restrictions. When

plaintiffs abandoned the plan and instead built an alternate structure, the Board


                                                                         A-0037-17T3
                                       2
exercised its jurisdiction and required plaintiffs to re-apply for a side yard

variance. This time, the Board denied plaintiffs' application.

      Plaintiffs filed a complaint in lieu of prerogative writs. The Law Division

judge concluded the Board's denial was not arbitrary, capricious or

unreasonable, and dismissed plaintiffs' complaint. This appeal followed.

                                       I.

      We provide some background. Plaintiffs' residence is located in the rear

of a 6.24-acre irregularly-shaped parcel, bordered on the east by dedicated open

space. Approximately five acres of vineyards and fruit trees are located in the

front of the parcel. The property is steeply sloped from back to front.

      In 2009, plaintiffs submitted a development application to construct a

detached conservatory atop a flat-roofed storage area used for farm equipment

and growing materials. If viewed from the rear of the property, the storage area

would be below grade. Plaintiffs planned to have two staircases built to access

the conservatory on top of the roof of the storage area, which would be covered

with grass and bordered on one side with plantings. Plaintiffs also planned an

addition to their residence, with a connecting covered walkway, neither of which

needed Board approval.




                                                                          A-0037-17T3
                                       3
      The zoning officer concluded no variance was required for the storage

area because it was "subterranean." However, plaintiffs needed: 1) a height

variance, because the conservatory would be eighteen-feet high, as opposed to

sixteen feet permitted by the zoning regulations; and 2) a side yard variance,

because the conservatory would be thirty-eight feet from the eastern property

line, as opposed to seventy-five feet as required by regulations.

      The Board granted the application.       In its memorializing resolution,

regarding the side yard variance, the Board stated that the front of the property

contained "a substantial amount of vegetation and a vineyard[,]" and locating

the conservatory in the rear was

            appropriate considering the unique shape of the
            property and vineyard. The applicant is able to place
            the conservatory more towards the front of the property
            and eliminate the side yard setback variance, however
            that would be a determinate [sic] to the adjoining
            property owners, as well as create a negative impact on
            the vineyard.      The proposed location of the
            conservatory has no detrimental affect [sic] on the
            adjoining properties and can be granted without a
            substantial determinate [sic] to the Master Plan or
            Zoning Ordinances.

            [(Emphasis added).]

In considering the height variance, the Board noted the deviation was "minimal"

and given the "substantial vegetation" and "unique location of the conservatory


                                                                         A-0037-17T3
                                        4
(to the rear of the . . . property)," the variance could "be grated [sic] without

substantial detriment to the adjoining property owners or the Master Plan and

Zoning Ordinances."

      The Board concluded the development application "w[ould] have no

substantial negative impact on the adjoining property owners or on the

prevailing character of the neighborhood." The Board granted the variances

"because of the uniqueness of the property," and because the "requested

variance[s could] be granted without substantial detriment to the public good

and [would] not impair the intended purpose of the Zoning Ordinance."

      Because of cost constraints, plaintiffs abandoned the plan, and did not

construct the conservatory. Instead, on dates undisclosed by the record, they

constructed the proposed subterranean storage area and added a peaked roof to

make the structure architecturally consistent with their home. As built, the

garage/barn structure was now partially above grade but approximately the same

size as the previously proposed subterranean storage area; the easterly wall was,

as always, approximately twenty feet from the property line. 1



1
  Plaintiffs attached a closed-in garbage area that encroached approximately
another five feet into the setback. The setback variance request in 2009
measured the distance from the conservatory to the property line, not from the
below-grade storage area to the property line.
                                                                         A-0037-17T3
                                       5
      After the garage/barn was fully constructed and inspected, the

municipality issued plaintiffs a certificate of occupancy. The Board, however,

decided to exercise jurisdiction, reasoning the structure was no longer

subterranean. The Board required plaintiffs to re-apply solely for a variance

from the side yard restrictions.

      Plaintiff Michael Oster testified, as did a professional architect who

designed the 2009 plan and was familiar with the garage/barn as constructed. It

was undisputed that the garage/barn was not visible from the road, was not

visible from the residence of the property owner to the west, and was only

somewhat visible from the neighboring dedicated open-space parcel. Oster

never testified that the family parked its vehicles inside the structure, but rather

that it was used to park a tractor during growing season and to store other

supplies for farming, canning, and bottling grapes and fruit. By a unanimous

vote, the Board denied the application.

      In its 2016 memorializing resolution, the Board noted it had not approved

an "underground garage" nor did the Board "make ay [sic] findings regarding

the underground garage" in 2009, because the zoning officer had already

approved that part of the application. The Board found that plaintiffs' decision

to place the structure near the back of the property, closer to the residence, was


                                                                            A-0037-17T3
                                          6
more consistent with "a garage then [sic] a barn used for farming." According

to the resolution, the Board concluded that given the size of the lot, "if the

garage/barn is used for farming purposes, [it] can be placed anywhere in the

farming area, which would be consistent with a farm use. . . . [Plaintiffs had]

ample space to build the proposed barn somewhere that does not violate the side

yard setback requirement."

      The Board specifically did not agree with plaintiffs' position that because

"the property is irregular [sic] shaped . . . placing the garage/barn in the rear is

a better location . . . ." The Board found plaintiffs sited the structure "for their

own convenience and to use same as a residential garage, not as a barn." The

Board concluded plaintiffs "failed to satisfy the positive criteria[,]" because

"there [was] nothing unique about this property that would cause the appli cant

an undue hardship for the construction of a barn that does not violate the side

yard setback."

      The Board also considered the "negative criteria," and found the side yard

encroachment "provide[d] no benefit to the public good and the adjoining

property owner [would] be substantially impaired by having such a large

structure so close to their [sic] property line." The Board rejected plaintiffs'

contention that the reduction in side yard setback posed no detriment because


                                                                            A-0037-17T3
                                         7
the neighboring property was dedicated open space. The Board found the

garage/barn structure "is not only substantially encroaching into the side yard

setback but in essence is violating the essence of the open space lot." The

reduction in setback was "solely for the convenience of the applicant." 2

      Before the Law Division judge, plaintiffs argued that the Board's denial

of the application "eviscerate[d] everything [it] found in the first [application]."

Although not alleged in their complaint, plaintiffs also argued that the issuance

of building permits and a certificate of occupancy by the municipality equitably


2
  The Board's resolution also addressed and rejected plaintiffs' request for relief
pursuant to N.J.S.A. 40:55D-70(c)(2). That section of the MLUL

            permits a variance for a specific property, if the
            deviation from bulk or dimensional provisions of a
            zoning ordinance would advance the purposes of the
            zoning plan and if the benefit derived from the
            deviation would substantially outweigh any detriment.
            The applicant bears the burden of proving both the
            positive and negative criteria.

            [Ten Stary Dom, 216 N.J. at 30 (citing Nash, 96 N.J. at
            106).]

The Law Division judge affirmed the Board's reasoning and denial of a (c)(2)
variance.

      Before us, plaintiffs again assert they are entitled to variance relief under
section (c)(2). The argument lacks sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E). There is no evidence that the purposes of
the zoning plan would be advanced by the garage/barn as constructed.
                                                                            A-0037-17T3
                                         8
estopped the Board from denying the application, and the memorializing

resolution was legally inadequate.

      In a comprehensive oral opinion, the judge cited appropriate case law and

concluded res judicata did not bar the Board's bar consideration of the merits of

the later application, which "contain[ed] several material differences." She

noted a change in use between the conservatory, which was linked to the

residence, and the garage/barn, which primarily served farm uses on the

property. The judge affirmed the Board's reasoning that plaintiffs failed to

satisfy the positive and negative criteria for a variance and rejected plaintiffs'

assertion of estoppel, concluding there was no evidence regarding plaintiffs'

interactions with the municipality.         Lastly, the judge rejected plaintiffs'

contention that the Board's resolution was legally deficient. She entered an

order dismissing plaintiffs' complaint.

                                          II.

      On appeal, plaintiffs contend that some of the Board's findings in 2016

were contrary to specific findings it made in 2009. They argue "res judicata"

applies to the Board's earlier findings thereby rendering the 2016 decision a

"nullity." Plaintiffs contend they were entitled to variance relief, and the Board's

denial was arbitrary, capricious and unreasonable. Additionally, plaintiffs argue


                                                                            A-0037-17T3
                                          9
the Board should be equitably estopped from requiring them to secure a variance

and, lastly, that the Board's resolution was "statutorily deficient."

      Having considered these arguments in light of the record and applicable

legal standards, we reverse and remand to the Board for further proceedings

consistent with this opinion.

      We apply "[t]he same standard of review" to the Board's decision as does

the trial court. N.Y. SMSA, LP v. Bd. of Adjustment of Twp. of Weehawken,

370 N.J. Super. 319, 331 (App. Div. 2004). A reviewing court can "set aside" a

municipal board's decision "when it is 'arbitrary, capricious or unreasonable.'"

Cell S. of N.J. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75,

81 (2002) (quoting Medici v. BPR Co., 107 N.J. 1, 15 (1987)). "[Z]oning

boards, 'because of their peculiar knowledge of local conditions[,] must be

allowed wide latitude in the exercise of delegated discretion.'" Price v. Himeji,

LLC, 214 N.J. 263, 284 (2013) (alteration in original) (quoting Kramer v. Bd.

of Adjustment, 45 N.J. 268, 296 (1965)). A zoning board's decision "enjoy[s] a

presumption of validity, and a court may not substitute its judgment for that of

the board unless there has been a clear abuse of discretion." Ibid. (citing Cell S.

of N.J., 172 N.J. at 81). While we accord substantial deference to the factual




                                                                           A-0037-17T3
                                       10
findings of the Board, its conclusions of law are subject to de novo review.

Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993).

      Initially, we agree with the Law Division judge that res judicata did not

bar the Board's consideration of the application on its merits. As the Court

recently explained, res judicata may bar consideration of a later application that

is

            similar or substantially similar to a prior application,
            the application involves the same parties or parties in
            privity with them, there are no substantial changes in
            the current application or conditions affecting the
            property from the prior application, there was a prior
            adjudication on the merits of the application, and both
            applications seek the same relief . . . .

            [Ten Stary Dom, 216 N.J. at 39 (citing Bressman v.
            Gash, 131 N.J. 517, 527 (1993)).]

Of course here, plaintiffs invoke the doctrine affirmatively, i.e., they seek to

give preclusive effect to the 2009 resolution.

      "The question for the municipal agency on a second application . . . centers

about 'whether there has occurred a sufficient change in the application itself or

in the conditions surrounding the property to warrant entertainment' of the

matter again." Allied Realty v. Upper Saddle River, 221 N.J. Super. 407, 414

(App. Div. 1987) (citing Russell v. Tenafly Bd. of Adjustment, 31 N.J. 58, 66

(1959)). The Board's decision in this regard "should 'be overturned on review

                                                                          A-0037-17T3
                                       11
only if it is shown to be unreasonable, arbitrary or capricious.'" Bressman, 131

N.J. at 527 (quoting Russell, 31 N.J. at 67). We conclude, as did the trial judge,

that the 2016 application was not substantially similar to the 2009 application

so as to bar the Board's consideration of its merits.

      We discern plaintiffs' argument more accurately to be whether the Board

was required to give preclusive effect to its prior factual findings about the

uniqueness of the property itself, and the beneficial placement of the structures

— at that time, the conservatory atop the subterranean storage area — at the rear

of the property and essentially out of view. In other words, should the Board

have been collaterally estopped from finding, as it did in the second resolution,

that the property was not "unique," and that the garage/barn could have been

placed in the front of the property, closer to the farm portion that it serviced,

despite being clearly visible from the road?

      "Collateral estoppel . . . represents the 'branch of the broader law of res

judicata which bars relitigation of any issue which was actually determined in a

prior action, generally between the same parties, involving a different claim or

cause of action.'" Tarus v. Borough of Pine Hill, 189 N.J. 497, 520 (2007)

(quoting Sacharow v. Sacharow, 177 N.J. 62, 76 (2003)) (emphasis added).

            For the doctrine of collateral estoppel to apply to
            foreclose the relitigation of an issue, the party asserting

                                                                          A-0037-17T3
                                       12
                 the bar must show that: (1) the issue to be precluded is
                 identical to the issue decided in the prior proceeding;
                 (2) the issue was actually litigated in the prior
                 proceeding; (3) the court in the prior proceeding issued
                 a final judgment on the merits; (4) the determination of
                 the issue was essential to the prior judgment; and (5)
                 the party against whom the doctrine is asserted was a
                 party to or in privity with a party to the earlier
                 proceeding.

                 [Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521
                 (2006) (quoting In re Estate of Dawson, 136 N.J. 1, 20-
                 21 (1994)) (citations and parentheticals omitted).]

We have applied the doctrine to decisions made by zoning boards of adjustment.

See, e.g., Charlie Brown of Chatham, Inc. v. Bd. of Adjustment for Chatham

Twp., 202 N.J. Super. 312, 327 (App. Div. 1985).

       In Stop & Shop Supermarket Company v. Board of Adjustment of

Springfield, the board made specific findings in considering a prior application

for a use variance made by the applicant's predecessor in title. 162 N.J. 418,

436 (2000). Although couching its decision in terms of res judicata, the Court

recognized that in the absence of any changed circumstances, the board "could

not reasonably be permitted to contradict its earlier findings that residential

development [in a] residentially-zoned portion of the property was inappropriate

. . . ." Ibid.




                                                                            A-0037-17T3
                                           13
      Here, it is undisputed that the particular features of plaintiffs' property, its

"shape," "topographic conditions" and "physical features," N.J.S.A. 40:55D-

70(c)(1), remained unchanged from 2009 when the Board specifically found the

"unique shape" of the parcel and the location of the vineyard area at its front

justified relief. Nevertheless, the Board found in 2016 that there was "nothing

unique about th[e] property."

      On the record before us, however, we cannot agree with plaintiffs that the

Board's 2009 approval precluded consideration of the location of the garage/barn

on the parcel, and that the earlier resolution is entitled to preclusive effect on

that issue. We agree with the judge that the principle structure for consideration

by the Board in 2009 was the conservatory; the subterranean storage area was

outside the Board's purview. As constructed, the garage/barn undisputedly had

a different use than the conservatory, but it had the same or similar use as the

originally conceptualized subterranean storage area.

      The Board, however, made conflicting findings about the garage/barn. On

the one hand, the Board concluded there was no special justification for building

the garage/barn near the residence, and plaintiffs could just have well located it

in the front of the parcel without the need for a side yard variance. The judge

subscribed to this view.      Yet, the Board's resolution also found that the


                                                                              A-0037-17T3
                                        14
placement of structure near the house was more consistent with "a garage then

[sic] a barn used for farming." Based upon our review of the record, there is no

support whatsoever for this conclusion in the testimony.

      In short, the Board's consideration of the 2016 variance application

required, in the first instance, acceptance of its 2009 conclusion regarding "t he

particular condition of the property," which remained unchanged. Whether the

unique properties of the parcel "result[ed] in peculiar and exceptional practical

difficulties to" plaintiffs' placement of the barn/garage was the critical issue.

N.J.S.A. 40:55D-70(c)(1).

      In this regard, we add that in Hawrylo v. Board of Adjustment, Harding

Township, the trial court affirmed the zoning board's grant of a side yard

variance to an applicant who intended to construct a barn on an existing

foundation. 249 N.J. Super. 568, 571-77 (App. Div. 1991). The judge, citing

the existing foundation's location near a waterline and the lack of "disruption of

other space on the property[,]" concluded the board properly found the

"exceptional physical features" of the property justified the variance. Id. at 577.

In affirming, we noted that "a (c)(1) variance may be granted based on more

than proof of hardship alone." Id. at 581.




                                                                           A-0037-17T3
                                       15
      We reject the Board's counsel's argument before us that plaintiffs'

presentation lacked sufficient evidence as to both the positive and negative

criteria, and that failure independently provides a basis to affirm the dismissal

of plaintiffs' complaint. As we see it, there was no reason why plaintiffs should

have anticipated that the Board would contradict its earlier findings.3

      As a result, we are compelled to remand to the Board for further

proceedings, which it shall conduct with acceptance of its earlier finding

regarding the unique nature of plaintiffs' property. We hasten to add that we

express no position on the merits of plaintiffs' request for a (c)(1) side yard

variance.   We do note, however, that the Board's resolution lacked any

explanation for why a peaked roof that added minimal height to a largely

underground structure violated the "essence" of the neighboring open space,




3
  Plaintiffs' remaining arguments lack sufficient merit to warrant discussion in
a written opinion. R. 2:11-3(e)(1)(E). Plaintiffs introduced no proof before the
Board supporting the claim of equitable estoppel, see Motley v. Borough of
Seaside Park Zoning Bd. of Adjustment, 430 N.J. Super. 132, 152 (App. Div.
2013) (setting forth elements of the claim), nor was it specifically pled in
plaintiffs' complaint. Additionally, the Board's resolution was not "couched in
statutory language and lack[ing] any reference to specific facts and
circumstances surrounding the application." N.Y. SMSA, 370 N.J. Super. at 333
(App. Div. 2004). In short, the resolution was legally sufficient.


                                                                          A-0037-17T3
                                      16
while an eighteen-foot structure, albeit several feet more distant from the

property line, created no negative impact in 2009.

      Although plaintiffs are entitled to present their proofs on remand, we

otherwise leave to the Board's sound discretion the conduct of the proceedings,

including the nature and extent of additional proofs.

      Reversed and remanded. We do not retain jurisdiction.




                                                                       A-0037-17T3
                                      17
