Glen R. Sponaugle v. Carol Walsh

NOT FOR PUBLICATION WITHOUT THE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-0833-24

GLEN R. SPONAUGLE,

Plaintiff-Appellant,

v.

CAROL WALSH, THE

BOROUGH OF AVALON

PLANNING BOARD, and

THE BOROUGH OF AVALON,

Defendants-Respondents.

____________________________

Submitted December 3, 2025 – Decided January 20, 2026

Before Judges Currier and Berdote Byrne.

On appeal from the Superior Court of New Jersey, Law

Division, Cape May County, Docket No. L-0223-23.

Fox Rothschild LLP, attorneys for appellant (Michael

J. Malinsky, Timothy J. Bloh and Jacqueline A. Davis,

on the briefs).

Monzo Catanese Delollis, PC, attorneys for respondent

Carol Walsh (Lyndsy M. Newcomb and Kathryn A.

Monzo, on the brief).

Paul J. Baldini, PA, attorneys for respondents Borough

of Avalon Planning Board and Borough of Avalon

(Paul J. Baldini, on the brief).

PER CURIAM

Plaintiff Glen R. Sponaugle appeals from a final order denying his action

in lieu of prerogative writs. This matter involves a prior action in which

plaintiff's neighbor, Carol Walsh, challenged zoning permits issued by the

Borough of Avalon for a pool on plaintiff's property, without joining either

plaintiff or the prior owner of the property to her litigation. The trial court in

the prior litigation entered an order, despite plaintiff's absence, concluding that

the utility driveway adjoining plaintiff's property is a street. The classification

of the utility driveway as a street rendered the pool in violation of the Avalon

Zoning Code, resulting in the Borough issuing a zoning violation requiring

plaintiff to remove the pool.

On appeal, plaintiff argues the trial court erred: (1) in its application of

the law-of-the-case doctrine to avoid addressing whether the utility driveway is

a street on the merits; (2) in failing to apply equitable estoppel based on his

reliance on the zoning permits issued by the Borough, and not having been

joined as an indispensable party to the prior litigation; and (3) in determining

the Borough of Avalon Planning and Zoning Board's (the Board) denial of

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variance relief for the pool on his property was not arbitrary, capricious, or

unreasonable.

We conclude the trial court determination that the law-of-the-case

doctrine barred consideration of plaintiff's arguments on the merits was in error,

as the doctrine prevents relitigation of an issue in the same case, and the prior

litigation was a separate case in which plaintiff or his predecessor in interest

were not parties. We therefore reverse and remand for a hearing on whether the

utility driveway is a street. Because that determination must be decided before

the Board may evaluate relief pursuant to a variance application, we do not

address that issue.

I.

On September 3, 2021, JLC Private Investments, LLC (JLC), through its

contractor, A&E Pavers Plus LLC, submitted an application to the Borough of

Avalon zoning officer for a permit to construct an in-ground pool at its property

located in the Borough. The zoning officer issued a zoning permit to JLC on

September 9, 2021, and a construction permit on September 20, 2021,

authorizing the construction of the pool.

On October 1, 2021, plaintiff entered into an agreement with JLC to

purchase the property. On October 8, 2021, Carol Walsh, owner of the

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neighboring property, filed an appeal with the Board challenging the issuance

of the permits. Walsh contended the utility driveway adjacent to JLC's property

constituted a street, thereby creating two front yards and placing the pool within

one of them, in violation of Chapter 27-7.2 a.1.(a) of the Avalon Zoning Code.

As such, variance relief would be needed for the pool to be constructed.

After a hearing on November 2, 2021, the Board upheld the zoning

officer's decision and approved the grant of a zoning permit, finding the utility

driveway was not a street because, among other things, it "is narrow in nature,

provides for only one vehicle at a time on it, has no parking on either side and

being at 15 feet wide is considerably smaller than a standard street in the

Borough." The Board's decision was memorialized in Resolution No. PZ#21-

16 on December 14, 2021.

On December 1, 2021, plaintiff filed a "Notice of Settlement" for his

purchase of the property from JLC, which was recorded on December 7, 2021.

The Borough issued a "Certificate of Occupancy" to JLC on December 23, 2021,

followed by a "Certificate of Approval" for the pool on December 30, 2021.

Plaintiff closed on the property on January 4, 2022, and the deed was recorded

on January 21, 2022.

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On January 7, 2022, after plaintiff had closed on the property but before

the deed was recorded, Walsh filed a complaint in lieu of prerogative writs (the

prior litigation) alleging the Board's decision was arbitrary, capricious, and

unreasonable. On that same day, JLC was provided with notice of the prior

litigation and a copy of the complaint; however, plaintiff did not receive notice.

Neither plaintiff nor JLC were named as defendants in Walsh's complaint.

The trial court in the prior litigation issued its final order on November 1,

2022, finding the Board's decision was not supported by substantial evidence,

and was arbitrary, capricious, and unreasonable because it failed to make a

factual determination as to whether the utility driveway is a street. The court

also determined the utility driveway is a street, reasoning:

[The] definitions [of a street pursuant to both the

Municipal Land Use Law (MLUL) and Avalon

Municipal Code § 1-2] are unambiguous and inclusive.

It is irrelevant whether the street in dispute is called an

alley, path, drive, road, utility driveway, lane, etc. The

street in dispute is a public way that is maintained by

Avalon. It is also of note that the street in dispute is the

sole roadway for certain residents to access their

homes, a fact that strengthens the reality that the street

in dispute is a public necessity and dispels the notion

that it is some unused private alley. Further, the street

in dispute is located on several plats filed with the

county recording officer, prior to the appointment of a

planning board. Under the MLUL, it is inconsequential

what the name of the street in dispute is on the plat, it

matters only that the street in dispute is clearly located

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on the plat. This [c]ourt need not address legislative

intent, because the language of both statutes is plain and

unambiguous.

Accordingly, the trial court reversed the Board's resolution and remanded for

further proceedings consistent with the order.

On April 11, 2023, the Board adopted Special Resolution Authorizing

Settlement of Litigation PZ#21-16A, which "accept[ed] the court order that

determine[d] the proposed pool is in the front yard, requiring variance relief to

remain in the front yard." On May 17, 2023, the Borough issued a zoning

violation to plaintiff, which required him to remove the pool within thirty days .

Plaintiff alleges he was not aware of the prior litigation until he received the

zoning violation.

Plaintiff then filed application PZ#23-08 before the Board on June 13,

2023, seeking variance relief pursuant to N.J.S.A. 40:55D-70(c)(1) and (c)(2) to

permit the pool in the front yard of the property. After conducting a hearing on

November 14, 2023, the Board denied plaintiff's requests for variances. The

Board adopted Resolution PZ#23-08 on December 12, 2023, memorializing its

findings.

On June 2, 2023, plaintiff filed a complaint in lieu of prerogative writs

against Carol Walsh, the Borough of Avalon Board, and the Borough of Avalon.

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On January 1, 2024, following the Board's resolution denying variance relief,

plaintiff amended his complaint, which sought:

(1) to declare the Board's decision to adopt the [April

11, 2023] Special Resolution without conducting a

hearing nor allowing Plaintiff to present evidence or

testimony[] as arbitrary, capricious, and unreasonable,

and in violation of the New Jersey [MLUL], the

Borough of Avalon Ordinances, and the laws of the

State of New Jersey[;] (2) to order the Board to conduct

a hearing and allow[] Plaintiff to present testimony and

evidence at the hearing[;] (3) a reversal of the Board's

decision denying Plaintiffs' application for variance

relief pursuant to N.J.S.A. 40:55D-70(c)(l) and

N.J.S.A. 40:55D-70(c)(2); (4) a granting of Plaintiffs'

request for variance relief for an already constructed

pool in the front yard 1; (5) to declare that the Borough

of Avalon is equitably estopped from forcing Plaintiff

to remove the Pool; and (6) other such relief as the

Court deems equitable and just.

The trial court issued a final judgment on October 7, 2024, denying

plaintiff's action on all counts. The court found the Board's denial of plaintiff's

variance application was not arbitrary, capricious, or unreasonable. The court

also held equitable estoppel did not apply as a matter of law against the Borough

defendants or Walsh. As to the issue of whether the utility driveway constitutes

a street, the trial court stated: "This [c]ourt has already determined that [the]

'[u]tility [d]riveway' is a street under the Borough's ordinances and the MLUL

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as such, this [c]ourt's ruling in the prior litigation is the law of the case and the

issue is not properly before the Court at this time." This appeal followed.

II.

Whether the court "correctly applied the law-of-the-case doctrine is a

matter of law, and therefore our standard of review is de novo." State v. K.P.S.,

221 N.J. 266, 276 (2015). Pursuant to the law-of-the-case doctrine, "where there

is an unreversed decision of a question of law or fact made during the course of

litigation, such decision settles that question for all subsequent stages of the

suit[.]" Jacoby v. Jacoby, 427 N.J. Super. 109, 117 (App. Div. 2012) (quoting

Bahrle v. Exxon Corp., 279 N.J. Super. 5, 21 (App. Div. 1995)). The doctrine

is a "non-binding rule intended to 'prevent re[-]litigation of a previously

resolved issue.'" Lombardi v. Masso, 207 N.J. 517, 538 (2011) (quoting In re

Est. of Stockdale, 196 N.J. 275, 311 (2008)). "A hallmark of the law of the case

doctrine is its discretionary nature, calling upon the deciding judge to balance

the value of judicial deference" for prior rulings "against those factors that bear

on the pursuit of justice and, particularly, the search for truth." Id. at 538-39

(quoting Hart v. City of Jersey City, 308 N.J. Super. 487, 498 (App. Div. 1998))

(internal quotation marks omitted). The doctrine "is essentially an adjective

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concept, and should not be used to justify an incorrect substantive result." Hart,

308 N.J. Super. at 498.

"Underlying the [law-of-the-case doctrine] are principles similar to

collateral estoppel . . . ." K.P.S., 221 N.J. at 277 (quoting State v. Reldan, 100

N.J. 187, 209 (1985)) (O'Hern, J., dissenting). "Both collateral estoppel and law

of the case are guided by the 'fundamental legal principle . . . that once an issue

has been fully and fairly litigated, it ordinarily is not subject to relitigation

between the same parties either in the same or in subsequent litigation.'" Ibid.

(quoting Morris Cnty. Fair Hous. Council v. Boonton Twp., 209 N.J. Super. 393,

444 n.16 (Law Div. 1985)). "However, whereas collateral estoppel may bar a

party from relitigating an issue decided against it in a later and different case,

law of the case may bar a party from relitigating the same issue during the

pendency of the same case before a court of equal jurisdiction." Ibid. (emphasis

added) (citations omitted).

The trial court's application of the law-of-the-case doctrine was erroneous

because the doctrine prevents relitigation of an issue in the same case, and the

prior litigation was a separate case to which plaintiff and his predecessor in

interest were not parties. See Slowinski v. Valley Nat. Bank, 264 N.J. Super.

172, 180-81 (App. Div. 1993) (holding that a prior case, even if it arises from

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the same facts, does not constitute the "same suit" pursuant to the law -of-the-

case doctrine, particularly when a party to the later action was not a party to the

prior one); see also K.P.S., 221 N.J. at 277-78.

Moreover, the ruling the trial court relied upon is not sound because

plaintiff and its predecessor in interest were indispensable parties to the prior

litigation which Walsh failed to join, and plaintiff was denied the opportunity to

protect his property interests. Rule 4:28-1 provides:

A person who is subject to service of process shall be

joined as a party to the action if (1) in the person's

absence complete relief cannot be accorded among

those already parties, or (2) the person claims an

interest in the subject of the action and is so situated

that the disposition of the action in the person's absence

may either (i) as a practical matter impair or impede the

person's ability to protect that interest or (ii) leave any

of the persons already parties subject to a substantial

risk of incurring double, multiple, or other inconsistent

obligations by reason of the claimed interest.

"Whether a party is indispensable is fact sensitive." Int'l Brotherhood of

Elec. Workers Local 400 v. Borough of Tinton Falls, 468 N.J. Super. 214, 225

(App. Div. 2021). "[A] party is not truly indispensable unless he has an interest

inevitably involved in the subject matter before the court and a judgment cannot

justly be made between the litigants without either adjudging or necessarily

affecting the absentee's interests." Ibid. (quoting Toll Bros., Inc. v. Twp. of W.

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Windsor, 334 N.J. Super. 77, 90-91 (App. Div. 2000)). "The right of an

interested party . . . to have [his] concerns 'heard'[] is rooted in principles of

property rights, specifically the right to not be deprived of an interest in one's

property without process. Thus, 'any person, whether residing within or without

the municipality, whose right to use, acquire, or enjoy property is or may be

affected by any action taken under [the MLUL]' is an 'interested party.'" Harz

v. Borough of Spring Lake, 234 N.J. 317, 333 (2018) (quoting N.J.S.A. 40:55D-

4); see also N.J. Const. art. I, ¶ 1 (guaranteeing right to acquire, possess, and

protect property).

Plaintiff was an interested party in the prior litigation because the outcome

directly affected his property rights as the property owner. To the extent he had

not yet closed on the property, JLC was the indispensable property owner.

Accordingly, the law-of-the-case doctrine cannot be invoked to avoid resolving

the issue on the merits without the property owner being heard. See K.P.S., 221

N.J. at 277-78 ("Like collateral estoppel, law of the case does not bar one party

from having his day in court merely because another party has received an

adverse ruling, even if the issue is the same and arises from a common record.").

The law-of-the-case doctrine is often confused with collateral estoppel.

For collateral estoppel to preclude litigation,

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the party asserting 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.

[Winters v. N. Hudson Reg'l Fire and Rescue, 212 N.J.

67, 85 (2012) (quoting Olivieri v. Y.M.F. Carpet, Inc.,

186 N.J. 511, 521 (2006)).]

"[B]ecause [collateral estoppel] is an equitable doctrine, even if all five elements

coalesce, it 'will not be applied when it is unfair to do so.'" Allen v. V & A

Bros., Inc., 208 N.J. 114, 138 (2011) (quoting Olivieri, 186 N.J. at 521-22).

The fifth requirement for collateral estoppel is not met here because

plaintiff was not a party to the prior litigation, nor was he in privity with the

Borough defendants or Walsh. See K.P.S., 221 N.J. at 277 ("A fundamental

tenet of collateral estoppel is that the doctrine cannot be used against a party

unless that party either participated in or was 'in privity with a party to the earlier

proceeding.'") (quoting In re Est. of Dawson, 136 N.J. 1, 20 (1994)). And

although plaintiff was in privity with JLC, Walsh failed to name JLC as a party

to the prior litigation. Therefore, collateral estoppel cannot be invoked to bar

plaintiff the opportunity to protect his property rights.

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Because the issues of equitable estoppel and the denial of plaintiff's

variance application hinge on whether the utility driveway is a street, and that

issue is remanded for proceedings in which plaintiff is able to participate, we

decline to address those issues. See N.J. Civ. Serv. Ass'n v. State, 88 N.J. 605,

612 (1982) (explaining courts should refrain from interfering with an

administrative decision until "its effects [are] felt in a concrete way by the

challenging parties"); see also Garden State Equal. v. Dow, 434 N.J. Super. 163,

188 (Law Div. 2013).

Reversed and remanded for proceedings in accordance with this opinion.

We do not retain jurisdiction.

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