The opinion
NOT FOR PUBLICATION WITHOUT THE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-3436-22
JANET COLE,
Plaintiff-Appellant,
v.
CITY OF ESTELL MANOR
PLANNING/ZONING BOARD,
Defendant-Respondent.
_____________________________
Argued April 9, 2025 – Decided July 2, 2025
Before Judges Currier and Paganelli.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-3192-21.
Thomas F. Bullock argued the cause for appellant.
Richard A. Carlucci argued the cause for respondent
(Griffith and Carlucci, PC, attorneys; Richard A.
Carlucci, on the brief).
PER CURIAM
Plaintiff Janet Cole appeals from the trial court's order of May 26, 2023,
denying her motion for summary judgment and dismissing her complaint with
prejudice. The trial court agreed with defendant, City of Estell Manor
Planning/Zoning Board (Board) that res judicata precluded Cole from
submitting a second application before the Board. After careful review, we
conclude the Board misapplied res judicata to deny Cole's application.
Therefore, the court erred in dismissing plaintiff's complaint. We reverse.
This matter concerns two applications for hardship variance relief under
N.J.S.A. 40:55D-70 pertaining to the same property. The first application, the
Mitchell application, was denied by the Board on January 27, 2021. The second
application, Cole's application, was denied on July 21, 2021.
A comparison of the applications reveals:
Factor Mitchell Application Cole Application
Single-Family 30 feet x 40 feet 30 feet x 60 feet
Dwelling
Garage 20 feet x 30 feet under N/A
the house
Driveways Two One
Breezeway1 30 feet x 60 feet N/A
Pole Barn 30 feet x 40 feet N/A
1
The Mitchell application proposed for the breezeway to connect the single-
family dwelling to the pole barn.
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2
Front yard set-back 53 feet 46 feet
from the avenue 2
Fill on to property 10 feet 10 feet
Septic Within 10 feet of Within 10 feet of
avenue avenue
Clear Cutting 254 feet with a depth of 154 feet with a depth of
150 feet 100 feet
Building Coverage 3 1.4% .8%
The Board's resolution concerning Cole's application stated:
The Board . . . voted to determine if the application was
substantially similar to the application of . . . Mitchell
and is therefore subject to dismissal on the basis of the
doctrine of res judicata. On January 27, 2021[,] the
Board considered the application of . . . Mitchell, . . .
Cole's contract purchaser for identical relief on the
same Property. The Board denied . . . Mitchell's request
for a front yard variance . . . . Thereafter, a vote was
taken by the . . . Board and by a vote of six . . . in favor
of dismissal of the application and zero . . . against and
one . . . abstention a determination was made that the
application was substantially similar to the application
of . . . Mitchell decided on January 27, 2021[,] and
therefore should be dismissed on the basis of the
doctrine of res judicata.
2
According to Estell Manor's ordinance, "[t]he front yard shall be as close to
200 feet as practicable, taking into consideration the depth of the lot in
question."
3
According to Estell Manor's ordinance, the maximum "permitted building
coverage is . . . 10%."
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3
Further, the Board resolved:
3.) The . . . Board finds as a matter of fact: (A)
the application made by . . . [Cole] is substantially
similar to the variance application made by . . . Mitchell
on the same Property, which the Board denied on
January 27, 2021; (B) the same parties or their privies
are involved with both the prior . . . Mitchell
application, as . . . Cole's contract purchaser, and the
current application made by . . . [Cole]; (C) no
substantial change was made in the current application
and the conditions surrounding the property have
remained unchanged; (D) the . . . Mitchell application
was adjudicated on its merits; and (E) both the . . .
Mitchell application and the [Cole] application involve
the same cause of action as the . . . Mitchell application
requested a Front Yard Set Back variance allowing
construction of the single[-]family residence 53 feet
from Maple Avenue and the current application
requests a Front Yard Set Back variance allowing
construction 46 feet from Maple Avenue.
4.) The elimination of the pole barn, breezeway,
one driveway and reduced clear cutting are insufficient
to change the essential character of the application
which requests permission for significant development
to take place within 100 feet of Maple Avenue. The
current application requests greater relief th[a]n the
previously denied . . . Mitchell application. The current
application requests a variance allowing a set-back of
46 feet compared to the previous . . . Mitchell request
of 53 feet.
Cole filed a complaint in lieu of prerogative writs challenging the Board's
decision. Thereafter, Cole moved for summary judgment. The trial court heard
the parties' arguments and reserved its decision. On May 26, 2023, the court
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4
entered an order, accompanied by an eight-page memorandum of decision,
denying the motion for summary judgment and dismissing Cole's complaint.
The court considered Cole's arguments regarding the differences between
the applications:
(1) the eliminated breezeway, pole barn, garage, single
driveway, and basement; (2) the 1800 sq. ft. reduction
in construction by the elimination of the pole barn and
garage; (3) the reduced clear cutting of all trees across
the front of the property from 250 feet, with a depth of
100 feet, to 150 feet, with a depth of 100 feet,
amounting to a 10,000 sq. ft. reduction in the clear
cutting of vegetation; and (4) the movement of the
development to the east to avoid stormwater runoff to
adjoining properties.
However, the court found the Cole application did not
appear to mitigate several issues underlying the denial
of the Mitchell application. It does not fully diminish
the stormwater runoff issues that the Board found with
the Mitchell application. Nor does it address the
perceived problem of having a septic tank a few feet
away from Maple Avenue . . . .
Notably, the Cole application seeks even greater relief
from the 200-foot setback requirement, from 53 feet to
46 feet, and still implicates a significant area of clear
cutting along Maple Avenue. Although the clear
cutting was reduced from 250 feet wide by 100 feet
deep to 150 feet wide by 100 feet deep, the court does
not find that such reduction is substantially different
from that proposed by the Mitchell application, which
also included a residence that would be easily visible
from Maple Avenue in contrast to "the overwhelming
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5
majority" of homes in Estell Manor that "all sit way
back."
In sum, the record establishes (1) the Mitchell and Cole
applications are substantially similar, (2) the same
parties or privies are involved, (3) there are no
substantial changes between the applications or the
conditions affecting the property, (4) there was prior
adjudication on the merits, and (5) both applications
seek the same relief.
Therefore, the trial court could not "find that the Cole application is
substantially different from the Mitchell application so as to render the Board 's
invocation of res judicata arbitrary, capricious, or unreasonable."
On appeal, Cole argues: (1) the Board improperly applied res judicata
because "her revised application included a 50% reduction in building size,
elimination of a second driveway, and other modifications that constitute
substantial changes," and (2) "the Pinelands Protection Act [N.J.S.A. 13:18A-1
to -58], which has been implemented through the Pinelands Comprehensive
Management Plan . . . has jurisdiction over the property subject to this appeal."
Cole acknowledges the jurisdictional "argument was not expressly made
below."4
4
We "decline to consider questions or issues not properly presented . . . when
an opportunity for such a presentation is available 'unless the questions so raised
on appeal go to the jurisdiction of the trial court or concern matters of great
A-3436-22
6
"Res judicata as a principle of law bars a party from relitigating a second
time what was previously fairly litigated and determined finally." Hackensack
v. Winner, 162 N.J. Super. 1, 27 (App. Div. 1978). "The application of res
judicata is a question of law." Walker v. Choudhary, 425 N.J. Super. 135, 151
(App. Div. 2012) (quoting Selective Ins. Co. v. McAllister, 327 N.J. Super. 168,
173 (App. Div. 2000)). We review "[q]uestions of law . . . de novo." Ibid.
(quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995)).
For res judicata to apply, there must be "a final judgment by a court or
tribunal of competent jurisdiction, identity of issues, parties and cause of action
and thing sued for." Winner, 162 N.J. Super. at 27-28. "As a general rule, an
adjudicative decision of an administrative agency 'should be accorded the same
finality that is accorded the judgment of a court.'" Bressman v. Gash, 131 N.J.
517, 526 (1993) (quoting Restatement (Second) of Judgments § 83 cmt. b (Am.
L. Inst 1982)).
public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)
(quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div.
1959)). Given our determination to reverse the trial court's order, despite the
jurisdictional nature of Cole's argument, we decline to consider it here. Our
reversal should not be construed as a determination on the merits of the
jurisdictional issue.
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7
Therefore,
[i]f an applicant files an application 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, the later application
may be barred.
[Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 39
(2013).]
It is for a board to make the initial determination regarding "the
sufficiency of a change." Bressman, 131 N.J. at 527. The question of whether
there is a "sufficient change in the application itself or in the conditions
surrounding the property," should be "liberally construed in favor of the
applicant." Russell v. Tenafly Bd. of Adjustment, 31 N.J. 58, 66 (1959).
A board's "determination . . . should 'be overturned on review only if it is
shown to be unreasonable, arbitrary or capricious.'" Bressman, 131 N.J. at 527
(quoting Russell, 31 N.J. at 67). "[T]he question is not whether a reviewing
court would have reached a different conclusion if it had decided the matter."
Ibid. (quoting Kaufmann v. Planning Bd. for Warren Twp., 110 N.J. 551, 558
(1988)). Nor do we "substitute [our] own judgment for that of the" board.
Advance at Branchburg II, LLC v. Branchburg Twp. Bd. of Adjustment, 433
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8
N.J. Super. 247, 253 (App. Div. 2013) (alteration in original) (quoting Kenwood
Assocs. v. Bd. of Adjustment, 141 N.J. Super. 1, 4 (1976)).
In Russell, the New Jersey Supreme Court found "the board did not abuse
its discretion in considering the second application on its merits" when the
second application "provide[d] for an increase of five feet in the proposed
setback which . . . amount[ed] to a 20% increase. Also[,] the total area to be
occupied by the dwelling ha[d] been decreased from 18% to 12%." 31 N.J. at
67.
In Tzeses v. Board of Trustees, we stated:
[A] second application . . . requested a variance
permitting the construction of two houses, whereas the
earlier application involved three houses and an
entirely different arrangement of the property. The
variance granted was not the same kind of a variance
for which an application was made several months
earlier, and it was therefore not barred by the denial of
the earlier application.
[22 N.J. Super. 45, 55 (App. Div. 1952).]
We conclude the Board erred in applying the res judicata doctrine to deny
Cole's application. We reach this determination, not by merely reaching a
different conclusion or substituting our judgment for the Board's, but instead
based on the Board's failure to view Cole's application liberally. Viewed from
a more liberal perspective, Cole's application substantially differs from
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9
Mitchell's by eliminating: (1) a driveway; (2) the breezeway; (3) and the pole
barn. In addition, Cole's application substantially reduced the clear cutting.
Therefore, the trial court erred in dismissing Cole's complaint.
We do not offer any opinion on the ultimate merits of Cole's application. 5
Rather, we only decide it should not have been barred from the Board's
consideration.
Reversed.
5
The trial court concluded "[e]ven if the doctrine of res judicata did not apply,
the record contains sufficient evidence to support the Board's denial of the Cole
application." However, the Board did not consider the evidence and deny Cole's
application on the merits. Therefore, it was inappropriate for the court to
consider the evidence and reach an alternative basis to deny Cole's application.
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