                                NOT FOR PUBLICATION WITHOUT THE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-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/cross-
                   respondents pro se.
            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 non-

conforming 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 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 because

                                                                         A-2339-18T4
                                        2
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 Ralph1 for 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.



                                                                         A-2339-18T4
                                        3
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[.]"


                                                                          A-2339-18T4
                                        4
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 twelve-

page 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.
                                                                           A-2339-18T4
                                        5
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."
                                                                            A-2339-18T4
                                         6
             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.

                                                                         A-2339-18T4
                                        7
            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


                                                                          A-2339-18T4
                                        8
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 opinio n,

Rule 2:11-3(e)(1)(E).




                                                                           A-2339-18T4
                                        9
                                       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


                                                                           A-2339-18T4
                                       10
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.




                                                                         A-2339-18T4
                                      11
