                                NOT FOR PUBLICATION WITHOUT THE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-2857-16T4


DAVID USECHAK and
LOUISE USECHAK,

          Plaintiffs-Respondents/
          Cross-Appellants,

v.

BOROUGH OF SHREWSBURY
PLANNING BOARD,

          Defendant-Respondent,

and

FRANCIS X. MOORE, JR. and
SUZANNE MOORE,

     Defendants-Appellants/
     Cross-Respondents.
______________________________

                    Argued September 21, 2018 – Decided December 7, 2018

                    Before Judges Simonelli, O'Connor and DeAlmeida.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Monmouth County, Docket No. L-0311-16.
            Paul H. Schneider argued the cause for
            appellants/cross-respondents (Giordano, Halleran &
            Ciesla, PC, attorneys; Paul H. Schneider, of counsel
            and on the brief).

            Edward F. Liston, Jr., argued          the   cause   for
            respondents/cross-appellants.

            Michele R. Donato argued the cause for respondent
            Borough of Shrewsbury Planning Board.

PER CURIAM

      In this action in lieu of prerogative writs, d efendants Francis X.

Moore, Jr. and Suzanne Moore (the Moores) appeal from the January 24, 2017

Law Division order, which reversed the decision of defendant Borough of

Shrewsbury Planning Board (Board) granting the Moores' application for minor

subdivision approval with variances. Plaintiffs David Usechak and Louise

Usechak (the Usechaks) cross-appeal from the same order. We affirm in part,

and reverse in part.

                                       I.

      The subject property is an approximately 1.8-acre lot (78,594 square feet)

that fronts on Corn Lane and Williamsburg Drive in Shrewsbury. The property

is located in the R-1 single-family zone, where the minimum lot size is 45,000

square feet, the minimum lot width/frontage is 150 feet, the minimum front and

rear yard setbacks are fifty feet, and the minimum side yard setback is thirty

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                                       2
feet. There is an existing two-story single-family dwelling on the lot that fronts

on Corn Lane. The Usechaks are adjacent property owners whose approximately

1.27-acre lot (55,321 square feet) fronts on Corn Lane and Williamsburg Drive.

      Malachi and Linda Kenney (the Kenneys) were prior owners of the

property. In 1991, Paul S. Kolarsick and Maria Ann Kolarsick (the Kolarsicks),

as contract purchasers, submitted an application for minor subdivision approval

with bulk variances to subdivide the property into two nonconforming lots of

39,313 square feet and 39,310 square feet (the first application). Because the

existing dwelling on the property was only 44.7 feet from Corn Lane where 50

feet is required, the Kolarsicks also sought continuation of the pre-existing bulk

deficiency for front-yard setback. The Board denied the first application on the

merits.

      The Kolarsicks and Kenneys did not appeal the Board's determination, and

the Kolarsick's did not purchase the property.       Daniel and Susan Whalen

purchased the property in 1992, and the Moores purchased the property from

them in 2005.

      In 2015, the Moores submitted an application that was identical to the first

application for minor subdivision approval with variance relief to subdivide the

property into two nonconforming lots. After learning of the Board's prior denial


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                                        3
of the first application, the Moores revised their application to propose

subdividing the property into one non-conforming undersized lot of 33,593

square feet containing the existing dwelling fronting on Corn Lane (the non-

conforming undersized lot), and one fully conforming lot of 45,002 square feet

fronting on Williamsburg Drive (the conforming lot) (the second application).

The second application sought variance relief only for the non-conforming,

undersized lot for lot size, rear yard setback, impervious area coverage, building

area coverage, and a continuation of a prior non-conforming front-yard setback.1

      In a December 16, 2015 resolution, the Board granted the second

application, concluding that res judicata did not bar its consideration of that

application on the merits. The Board found the property had changed ownership

several times since 1992, and the same parties were not involved. The Board

compared the second application to the first application and found the two

applications were substantially different and the second application presented a

different plan and different request for relief than the first application. The



1
   The proposed rear yard for Lot 5.01 was 33.6 feet where 50 feet is required.
As a result of the proposed subdivision, maximum lot coverage for impervious
area is 24 percent and 20 percent is allowed. This constitutes 1000 square feet
of additional impervious coverage. The proposed maximum building coverage
is 10.44 percent and percent is permitted, which is approximately 150 square
feet additional coverage.
                                                                          A-2857-16T4
                                        4
Board also found that the character of the neighborhood had changed since 1992,

as the Williamsburg development was not fully built in 1992 when the Board

considered the first application.

        The Usechaks filed a complaint in lieu of prerogative writs, challenging

the Board's decision. They argued the proceedings below were nullified because

Board member Judy Martinelly had a conflict of interest and there was no

Stewart2 notice of a meeting between the Moores and the Board on March 18,

2015.3 The Usechaks also argued that res judicata precluded the Board from

considering the second application on the merits.

        Citing N.J.S.A. 40:55D-23(b), the trial court found that the Usechaks

failed to show that Martinelly had a direct or indirect personal interest in the

Moores' application. The court also found the Moores' appearance before the

Board on March 18, 2015 was for a "Concept Plan Review," which is permitted

under N.J.S.A. 40:55D-10.1. Thus, the court held the proceedings were not

nullified.



2
   Stewart v. Planning Bd. of Manalapan, 334 N.J. Super. 123, 130 (Law Div.
1999) (requiring notice to the owners of all real property "within 200 feet in all
directions of the property which is the subject of the hearing [before the Planning
Board]").
3
    The first hearing on the second application occurred on July 15, 2015.
                                                                           A-2857-16T4
                                        5
      However, the court concluded the Board's finding that res judicata did not

bar its consideration of the second application on the merits was arbitrary,

capricious, and unreasonable. The court found that variance determinations

adhere to the property and are not personal to the applicant, and the Moores were

successors in both legal and equitable title.

      The court found that the alteration of the subdivision plan by moving the

lot line twenty-one feet north and variations on the rear and front setbacks and

percentage of the impervious surface area were merely minor changes. The

court concluded that the only difference between the first and second

applications was the location of the subdivision line, and such minor change did

not constitute a sufficient change to warrant the Board's consideration of the

second application on the merits.

      Lastly, the court found there was no substantial change in the conditions

affecting the property since 1992 because the Master Plan anticipated and

approved the Williamsburg development and there was no change in the Master

Plan or zoning of the property. The court concluded that other than the intended

Williamsburg development, there was no substantial change in the facts and the

circumstances of the second application.




                                                                         A-2857-16T4
                                        6
                                        II.

      On appeal, the Moores contend the court erred in holding that res judicata

barred the Board's consideration of the second application on the merits.4 The

Moores argue they were not in privity with or successors in title to the

Kolarsicks because the Kolarsicks made their application as contract purchasers

but never closed on the property and are not in the chain of title.

      The Moores argue that even if they are deemed the same parties, the Board

correctly determined that the second application was substantially different from

the first application and that there were substantial changes in the conditions

affecting the property from the first application to warrant its consideration of

the second application on the merits.

      In reviewing a planning board's decision, we use the same standard used

by the trial court. Bd. of Educ. Of Clifton v. Zoning Bd. of Adjustment of

Clifton, 409 N.J. Super. 389, 433 (App. Div. 2009). Like the trial court, our


4
  We decline to address the Usechaks' responding argument that regardless of
whether res judicata barred the second application, we should exercise original
jurisdiction and address whether the Board's decision to grant the second
application was arbitrary, capricious, or unreasonable. This argument goes
beyond the scope of the trial court's decision and the Usechaks concede it was
not part of their cross-appeal. See Bogey's Trucking & Paving, Inc. v. Indian
Harbor Ins. Co., 395 N.J. Super. 59, 64 n.3 (App. Div. 2007); Walrond v. Cty.
of Somerset, 382 N.J. Super. 227, 231 n.2 (App. Div. 2006).


                                                                         A-2857-16T4
                                        7
review of a planning board's decision is limited to determining whether the board

could reasonably have reached its decision. Davis Enters. v. Karpf, 105 N.J.

476, 485 (1987) (citing Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 285

(1965)). Decisions on land use applications are entrusted to the sound discretion

of the planning board. Kaufmann v. Planning Bd. for Warren, 110 N.J. 551, 558

(1988). Because the board has "'peculiar knowledge of local conditions,' its

factual findings are entitled to substantial deference and are presumed to be

valid."   Grubbs v. Slothower, 389 N.J. Super. 377, 382 (App. Div. 2007)

(quoting Burbridge v. Mine Hill Twp., 117 N.J. 376, 385 (1990)).

      Therefore, a court generally "will not substitute its judgment for that of a

board 'even when it is doubtful about the wisdom of the action.'" Cell S. of N.J.,

Inc. v. Zoning Bd. of Adjustment of W. Windsor, 172 N.J. 75, 81 (2002)

(quoting Cellular Tel. Co. v. Zoning Bd. of Adjustment of Harrington Park, 90

F. Supp. 2d 557, 563 (D.N.J. 2000)). We give deference to a planning board's

decision and reverse only if its action was arbitrary, capricious, or unreasonable.

Zilinsky v. Zoning Bd. of Adj. of Verona, 105 N.J. 363, 368 (1987). However,

where the issue on appeal involves a purely legal question, we afford no special

deference to the trial court's or the planning board's decision, and must

determine if the board understood and applied the law correctly.          D. Lobi


                                                                           A-2857-16T4
                                        8
Enters., Inc. v. Planning/Zoning Bd. of Sea Bright, 408 N.J. Super. 345, 351

(App. Div. 2009).

         Res judicata applies to a second land use application where the same

    parties and same property are involved in the application and there is no

    sufficient change in the application itself or in the conditions surrounding the

    property to warrant consideration of the application.5           Russell v. Bd. of

    Adjustment of Tenafly, 31 N.J. 58, 65 (1959). In making a determination as to

    whether res judicata applies, the planning board's analysis should be "liberally

    construed in favor of the applicant[.]" Id. at 66.

         The same parties are involved in the application where the applicants are

in privity. As we have held:

               Privity within the view of the rule of res judicata
               ordinarily means identity of interest, through
               succession to the same right of property involved in the
               prior litigation. . . . Privity in the sense of this principle
               connotes such connection in interest with the litigation
               and the subject matter as in reason and justice precludes
               a relitigation of the issue[.]

               Privity is a word which expresses the idea that as to
               certain matters and in certain circumstances persons
               who are not parties to an action but who are connected
               with it in their interests are affected by the judgment
               with reference to interests involved in the action, as if

5
  The parties do not dispute that the same property is involved in the second
application.
                                                                                A-2857-16T4
                                             9
            they were parties. The word "privy" includes . . . those
            whose interests are represented by a party to the action.
            ...

            [L.L. Constantin & Co. v. R. P. Holding Corp., 56 N.J.
            Super. 411, 417-18 (1959) (quoting Hudson Transit
            Corp. v. Antonucci, 137 N.J.L. 704 (E. & A. 1948);
            Restatement (First) of Judgments § 83 (1942)).]

      The Moores were in privity with the Kolarsicks, as they both made their

applications through succession to the same right of the property involved in the

first application. Id. at 417. Although the Moores were not parties to the first

application, they were connected with the application, as their interests in the

outcome were the same.       Further, although the Kolarsicks were contract

purchasers of the property and did not actually obtain title, they made the first

application in the same capacity as the Moores. Accordingly, the Board was

arbitrary, capricious and unreasonable in concluding the same parties were not

involved. However, the Board was not arbitrary, capricious, or unreasonable in

concluding there were sufficient changes in the second application and the

conditions affecting the property from the first application to warrant its

consideration of the second application on the merits.

      A planning board is not precluded from considering a second application

if the application contains sufficient changes. Bressman v. Gash, 131 N.J. 517,

527 (1993) (quoting Russell, 31 N.J. at 66). The planning board's determination

                                                                         A-2857-16T4
                                      10
of the sufficiency of a change "should 'be overturned on review only if it shown

to be unreasonable, arbitrary or capricious.'" Ibid. (quoting Russell, 31 N.J. at

67). "Thus, the question is not whether a reviewing court would have reached a

different conclusion if it had initially decided the matter, but whether the

Planning Board was arbitrary, capricious, or unreasonable in concluding that

[the] second application was sufficiently different to justify considering it on

the merits." Ibid. (citation omitted).

      In this case, the court concluded that moving the lot line twenty-one feet

north was not a substantial change warranting the Board's consideration of the

second application on the merits. Case law supports a contrary conclusion. For

example, in Russell, 31 N.J. at 63-64, the applicant initially applied for bulk

variance relief for a twenty-five-foot front yard setback where seventy-five feet

was required. The board denied the application. Ibid. The applicant filed a

second application, increasing the front yard setback to thirty feet and

decreasing the building coverage from eighteen percent to twelve percent. Id.

at 66-67. The five-foot difference amounted to a twenty percent increase in the

proposed setback. Id. at 67. The board found that res judicata did not bar the

second application and approved it. Ibid. The Court upheld the board's decision,




                                                                         A-2857-16T4
                                         11
noting that the increase in the front yard set back by just five feet constituted a

sufficient change from the prior application. Id. at 67.

      In Bressman, 131 N.J. at 527-28, the board found that res judicata did not

apply to a second application that increased the rear yard setback from twenty-

eight feet to thirty-two feet, eliminated coverage variances, and added a rear

yard buffer to mitigate the rear yard set back variance. The Court found "the

Planning Board was not arbitrary, capricious, or unreasonable in concluding that

the differences justified its consideration of [the] application on the merits." Id.

at 528.

      Here, the changes in the second application were significant. Moving the

lot line twenty-one feet north substantially changed both the sizes of the two lots

and the variance relief required. The second application proposed one fully

conforming lot and one non-conforming, undersized lot that required bulk

variances, whereas the first application proposed two non-conforming,

undersized lots that required bulk variances.       The Board found the second

application clearly presented a different plan with a different request for relief ,

considered the changes in the second application, and concluded the changes

were sufficiently different to warrant consideration of the second application on




                                                                            A-2857-16T4
                                        12
the merits. The Board's decision is supported by the record and entitled to

substantial deference.

      The court concluded there were no substantial changes in the conditions

affecting the property from the first application to warrant consideration of the

second application on the merits because the Master Plan contemplated the

Williamsburg development and Master Plan and zoning ordinance for the

property changed since the first application. Neither the court nor the Usechaks

cited any authority supporting this conclusion.

      The Williamsburg development, which is a cluster development located

across from and to the immediate south of the property, was not fully developed

in 1992, when the Board rejected the first application. Since that time, the

development was completed and contains smaller lots of 22,500 square feet,

which changed the character of the neighborhood. The second application more

closely conforms with that development. In addition, there were other changes

in the conditions affecting the property from the first application. Development

on the conforming lot is now subject to stormwater management regulations that

were not in effect or applicable to the property until 2004. See N.J.A.C. 7:8-1.1

to -6.3. The Board considered the changes and found they were sufficient to




                                                                         A-2857-16T4
                                      13
warrant consideration of the second application on the merits. The Board's

finding is supported by the record and entitled to substantial deference.

      For these reasons, we reverse the January 24, 2017 order.

                                         III.

      On cross-appeal, the Usechaks contend the court erred in finding the

proceedings before the Board were not nullified by Martinelly's conflict of

interest. We disagree.

      The Municipal Land Use Law (MLUL) provides that "[n]o member of the

planning board shall be permitted to act on any matter in which he [or she] has,

either directly or indirectly, any personal or financial interest." Randolph v.

Brigantine Planning Bd., 405 N.J. Super. 215, 225 (App. Div. 2009) (first

alteration in original) (quoting N.J.S.A. 40:55D-23(b)). "In commenting on the

breadth of [N.J.S.A.] 40:55-1.4, the predecessor to [N.J.S.A.] 40:55D-23(b),

which contains the identical disqualification language, we observed that the

'statutory disqualification is markedly broadly couched, extending to personal

as well as financial interest, directly or indirectly.'"     Ibid. (quoting Zell v.

Borough of Roseland, 42 N.J. Super. 75, 81 (App. Div. 1956)). "The statutory

bar 'is not confined to instances of possible material gain[,] but . . . it extends to

any situation in which the personal interest of a board member in the "matter"


                                                                              A-2857-16T4
                                         14
before it, direct or indirect, may have the capacity to exert an influence on his

action in the matter.'" Ibid. (alteration in original) (quoting Zell, 42 N.J. Super.

at 81).

      "This provision of the MLUL codifies the common-law rule that '[a]

public official is disqualified from participating in judicial or quasi[-]judicial

proceedings in which the official has a conflicting interest that may interfere

with the impartial performance of his duties as a member of the public body.'"

Ibid. (quoting Wyzykowski v. Rizas, 132 N.J. 509, 523 (1993)). There are "four

situations that require disqualification: (1) '[d]irect pecuniary interests'; (2)

'[i]ndirect pecuniary interests'; (3) '[d]irect personal interest'; and (4) '[i]ndirect

personal interest.'" Ibid. (alterations in original) (quoting Wyzykowski, 132 N.J.

at 525-26). If a Board member has a conflict that requires disqualification, but

participates in the proceedings anyway, then "the Board proceedings in their

entirety must be voided and set aside." Id. at 232.

      The record does not show that Martinelly had any interest, direct or

indirect, in the outcome of the proceedings, as her only connection to the case

was her involvement in the Moores' purchase of the property. This is likely not

a conflict that required disqualification. Nevertheless, at the beginning of the

first hearing on the second application, Martinelly recused herself and thereafter


                                                                               A-2857-16T4
                                         15
did not participate in the proceedings or vote on the second application. Thus,

the proceedings before the Board were not a nullity.

      Although Martinelly voted to approve the meeting minutes from which

she recused herself, this did not render the proceedings before the Board a

nullity.   Under the MLUL, it is the Board's resolution that reflects the

deliberative and specific findings of fact and conclusions of law and therefore

constitutes the official record of the Board's deliberations and ultimate approval

of the second application. See N.J.S.A. 40:55D-10(g). Conversely, the minutes

are an administrative record, which transcribes what occurs at each meeting.

N.J.S.A. 40:55D-9(c). Therefore, voting on the minutes in their entirety is an

administrative act, which did not affect the Board's quasi-judicial consideration

of the second application or nullify the proceedings.

                                       IV.

      Lastly, the Usechaks contend the court erred in finding the proceedings

before the Board were not nullified by the lack of a Stewart notice for the

meeting held on March 18, 2015. This contention lacks merit.

      "[N.J.S.A.] 40:55D-10.1 provides for informal review of the concept plan

for development." Stewart, 334 N.J. Super. at 128. N.J.S.A. 40:55D-10.1

provides, in pertinent part, that


                                                                          A-2857-16T4
                                       16
            [a]t the request of the developer, the planning board
            shall grant an informal review of a concept plan for a
            development for which the developer intends to prepare
            and submit an application for development. . . . The
            developer shall not be bound by any concept plan for
            which review is requested, and the planning board shall
            not be bound by any such review.

After an application has been submitted and in order to proceed with a hearing,

"notice shall be given to the owners of all real property or shown on the current

tax duplicates, located in the State and within 200 feet in all directions of the

property which is the subject of the hearing." Stewart, 334 N.J. Super. at 130

(quoting N.J.S.A. 40:55D-12 to -12.3).

      In this case, the Board held an informal review of a concept plan for a

development on March 18, 2016. Thereafter, on June 3, 2016, the Moores

submitted their first application to subdivide the property into two

nonconforming lots. This application was to be the subject of the first hearing

on July 15, 2015. The Moores provided notice of the hearing to residents within

a two hundred foot radius of the property by mail on June 3, 2015, and by

publication on June 5, 2015. However, at the July 15, 2015 hearing, the Moores

submitted a revised application to subdivide the property into one conforming

lot and one nonconforming, undersized lot with variance relief. The Board

granted the Moores' motion to deem the revised application complete, and


                                                                         A-2857-16T4
                                      17
ordered them to re-notice residents within a two hundred foot radius of the

property at least ten days prior to the next Board meeting.

      There was no Stewart violation here. The informal meeting on March 18,

2015 was for informal concept plan review and concerned a different application

than the Board ultimately considered, and the meeting occurred before the Board

deemed the Moores' revised application complete. Further, upon deeming the

revised application complete, the Board ordered the Moores to re-notice

residents within a two hundred foot radius of the property at least ten days prior

to the next Board meeting. The Moores complied. Accordingly, the court

correctly determined the proceedings before the Board were not nullified by the

lack of a Stewart notice for the meeting held on March 18, 2015.

      Affirmed in part and reversed in part.




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                                       18
