THE STOP & SHOP SUPERMARKET COMPANY, LLC VS. THE COUNTY OF BERGEN THE STOP & SHOP SUPERMARKET COMPANY, LLC VS. THE BERGENCOUNTY BOARD OF CHOSEN FREEHOLDERS(L-7943-14 AND L-9333-14, BERGEN COUNTY AND STATEWIDE)(CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2134-14T1

A-4630-14T1

THE STOP & SHOP

SUPERMARKET COMPANY, LLC,

Plaintiff-Appellant/

APPROVED FOR PUBLICATION

Cross-Respondent,

JUNE 14, 2017

v.

APPELLATE DIVISION

THE COUNTY OF BERGEN; THE BERGEN

COUNTY PLANNING BOARD; AND THE

COUNTY OF BERGEN DEPARTMENT OF

PLANNING AND ECONOMIC DEVELOPMENT,

Defendants-Respondents/

Cross-Appellants.

_________________________________________

THE STOP & SHOP

SUPERMARKET COMPANY, LLC,

Plaintiff-Appellant,

v.

THE BERGEN COUNTY BOARD OF CHOSEN

FREEHOLDERS, THE BERGEN COUNTY

PLANNING BOARD, AND INSERRA

SUPERMARKETS, INC.,

Defendants-Respondents.

_________________________________________

Argued November 9, 2016 - Decided April 6, 2017

Before Judges Ostrer, Leone, and Vernoia.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Docket Nos. L-

7943-14 and L-9333-14.

John R. Edwards, Jr. argued the cause for

appellant (Price, Meese, Shulman &

D'Arminio, P.C., attorneys; Mr. Edwards,

Gail L. Price, Kathryn J. Razin, and David

J. Reich, on the briefs).

Frank P. Kapusinski, Assistant Bergen County

Counsel, argued the cause for respondents

the County of Bergen, the Bergen County

Planning Board, and the County of Bergen

Department of Planning and Economic

Development (Julien X. Neals, County

Counsel, attorney; Mr. Kapusinski, of

counsel and on the briefs).

Edward J. Florio argued the cause for

respondent the Bergen County Board of Chosen

Freeholders (Florio, Kenny, Raval, L.L.P.,

attorneys; Mr. Florio, of counsel and on the

brief; Paul Samouilidis, on the brief).

John J. Lamb argued the cause for respondent

Inserra Supermarkets, Inc. (Beattie

Padovano, LLC, and Wells Jaworski Liebman,

LLP, attorneys; Mr. Lamb, Ira E. Weiner, and

James E. Jaworski, of counsel and on the

brief; Daniel L. Steinhagen, on the brief).

The opinion of the court was delivered by

LEONE, J.A.D.

Plaintiff the Stop & Shop Supermarket Company, LLC (Stop &

Shop) opposed the site plan application of defendant Inserra

Supermarkets, Inc. (Inserra) for the construction of a ShopRite

supermarket along a county road. Stop & Shop objected to the

application before defendant the Bergen County Planning Board

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(County Planning Board) and then appealed its approval of the

site plan to defendant the Bergen County Board of Chosen

Freeholders (Board of Freeholders). When the Board of

Freeholders affirmed, Stop & Shop filed a complaint in lieu of

prerogative writs in the Law Division, which affirmed on May 12,

2015. Stop & Shop challenges that decision in appeal A—4630-14.

Stop & Shop filed an action for declaratory relief against

the County Planning Board, defendant the County of Bergen

(County), and defendant the County of Bergen Department of

Planning and Economic Development (DPED) (collectively the "OPRA

defendants"). Stop & Shop alleged a violation of the Open

Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. The Law

Division dismissed that action on November 26, 2014. Stop &

Shop challenges that decision in appeal A-2134-14. We hold that

OPRA litigation is authorized to allow a party who is denied

access to records to obtain access to those records, and counsel

fees are authorized under OPRA if the litigation causes the

production of those records. Because Stop & Shop had already

obtained the records before it filed its declaratory judgment

action, that action was moot and it is not entitled to counsel

fees.

We listed the two appeals back-to-back and now consolidate

them for the purpose of this opinion. We affirm.

3 A-2134-14T1

[At the direction of the court, the

published version of this opinion omits the

discussion of appeal A-4630-14, including

Part I (which sets forth the facts relevant

to that appeal) and Part II (which affirms

the trial court's ruling in that appeal).

See R. 1:36-3.]

III.

We next consider appeal A-2134-14, concerning the dismissal

under Rule 4:6-2(e) of Stop & Shop's OPRA litigation. "When we

review a trial court's decision to dismiss a complaint under

Rule 4:6-2(e)," including for mootness, "our review is de novo."

Teamsters Local 97 v. State, 434 N.J. Super. 393, 413, 416 (App.

Div. 2014).

We summarize the facts detailed in the Law Division's

November 18, 2014 opinion. On July 7, 2011, Stop & Shop

submitted two OPRA request forms requesting various documents

relating to Inserra's site plan application. Stop & Shop

received responsive documents on August 8, 2011.

On June 26, 2014, Stop & Shop submitted another OPRA

request form requesting documents provided by Inserra relating

to its site plan application. On July 3, 2014, Stop & Shop

received additional responsive documents, including: a January

27, 2011 report to the Township Board where Inserra's

professional engineer, Jay Troutman, Jr., initially proposed a

traffic signal be installed at the intersection of Wyckoff and

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Greenwood Avenues; a June 30, 2011 e-mail in which a County

traffic engineer recommended against signalization due to

"conflicting movements and a railroad crossing" just south of

the intersection; and June 17, 2011 comments by the same

engineer stating "[a] corridor improvement with Railroad pre-

emption and signal coordination are required to be done before

adding any trips to the corridor" and that "[a] traffic impact

study of all the impacted intersections is required."

Stop & Shop wrote the Board of Freeholders advising it

received those documents and arguing the documents should have

been produced in response to its 2011 OPRA request. Stop & Shop

requested, and the Board agreed, to consider these documents,

which it admitted at its July 16, 2014 hearing. The Board

expressly stated it considered Stop & Shop's documents when it

approved Inserra's site plan application on August 20, 2014.

Two days before, on August 18, 2014, Stop & Shop filed a

complaint seeking a declaratory judgment "that [the OPRA]

Defendants violated Stop & Shop's rights under the Open Public

Records Act" and the common law right of access. Stop & Shop

also requested counsel fees. The OPRA defendants filed a motion

to dismiss pursuant to Rule 4:6-2(e). On November 26, 2014, the

Law Division granted the motion to dismiss, finding Stop &

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Shop's action was moot because it received the documents prior

to initiating its OPRA lawsuit. We agree.1

"Mootness is a threshold justiciability determination

rooted in the notion that judicial power is to be exercised only

when a party is immediately threatened with harm." Betancourt

v. Trinitas Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010).

"It is firmly established that controversies which have become

moot or academic prior to judicial resolution ordinarily will be

dismissed." N.J. Div. of Youth & Family Servs. v. W.F., 434

N.J. Super. 288, 297 (App. Div.) (quoting Cinque v. N.J. Dep't

of Corr., 261 N.J. Super. 242, 243 (App. Div. 1993)), certif.

denied, 218 N.J. 275 (2014). "'[F]or reasons of judicial

economy and restraint, courts will not decide cases in which the

issue is hypothetical, [or] a judgment cannot grant effective

relief[.]'" Cinque, supra, 261 N.J. Super. at 243 (citation

omitted).

Here, Stop & Shop's OPRA litigation was moot before it

filed its complaint because it already received the documents it

sought. Under OPRA's litigation provision, "[a] person who is

denied access to a government record by the custodian of the

1

The Law Division also found dismissal appropriate because the

complaint was "fatally time-barred" and because declaratory

judgment is not "a recognized or an authorized form of relief in

New Jersey" for a violation of OPRA. We need not reach these

issues as the action is moot.

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record, at the option of the requestor, may: institute a

proceeding to challenge the custodian's decision by filing an

action in Superior Court." N.J.S.A. 47:1A-6 (emphasis added).

"If it is determined that access has been improperly denied, the

court or agency head shall order that access be allowed." Ibid.

(emphasis added). Here, access was allowed even before Stop &

Shop filed suit. See, e.g., Walsh v. U.S. Dep't of Veteran

Affairs, 400 F.3d 535, 536 (7th Cir. 2005) ("'[O]nce the

government produces all the documents a plaintiff requests, her

claim for relief under the FOIA becomes moot.'" (citation

omitted)).2

Stop & Shop argues this litigation is not moot because it

seeks counsel fees. Under OPRA's litigation provision, "[a]

requestor who prevails in any proceeding shall be entitled to a

reasonable attorney's fee." N.J.S.A. 47:1A-6. "To be entitled

to such counsel fees under OPRA, a plaintiff must be a

prevailing party in a lawsuit . . . that was brought to enforce

his or her access rights." Smith v. Hudson Cty. Register, 422

N.J. Super. 387, 393 (App. Div. 2011). This requires either (1)

records are disclosed "after the entry of some form of court

2

New Jersey courts often consider cases interpreting "OPRA's

federal counterpart, the Freedom of Information Act (FOIA), 5

U.S.C. § 552." See, e.g., Educ. Law Ctr. v. N.J. Dep't of

Educ., 198 N.J. 274, 284 (2009).

7 A-2134-14T1

order or enforceable settlement" granting access, or (2) "when a

government agency voluntarily discloses records after a lawsuit

is filed" and under the catalyst theory the plaintiff "can

establish a 'causal nexus' between the litigation and the

production of requested records" and "'that the relief

ultimately secured by plaintiffs had a basis in law.'" Mason v.

City of Hoboken, 196 N.J. 51, 57, 76-77, 79 (2008) (citation

omitted). Under the common law right of access, litigants must

make the same showing. Id. at 79.

Our Supreme Court in Mason refused to presume OPRA

litigants are entitled to counsel fees even when records are

produced after suit is filed. Id. at 78-79. The Court

emphasized such an entitlement could "upend the cooperative

balance OPRA strives to attain," give plaintiffs "an incentive

to file suit" to obtain "an award of attorney's fees," and give

agencies "reason not to disclose documents voluntarily." Id. at

78. "OPRA cases designed to obtain swift access to government

records would end up as battles over attorney's fees." Id. at

79.

Here, the OPRA defendants voluntarily produced the records

before Stop & Shop filed suit. Such voluntary disclosure would

be discouraged if Stop & Shop is allowed to file suit to obtain

counsel fees for records it has already received. In any event,

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Stop & Shop did not obtain a judgment or enforceable consent

decree granting it access to the records, and its filing of its

lawsuit did not cause the production of the already-produced

records. The Law Division properly found Stop & Shop not

entitled to attorneys' fees as "Stop & Shop is not the

prevailing party and this lawsuit was not the catalyst for its

receipt of the requested documents."

Notably, Stop & Shop did not allege the OPRA defendants

"knowingly and willfully violate[d]" OPRA and "unreasonably

denied access under the totality of the circumstances."

N.J.S.A. 47:1A-11(a). Nor did Stop & Shop sue for imposition of

the civil penalties which OPRA authorizes for such non-

disclosure. Ibid. Thus, Stop & Shop did not claim entitlement

to the remedy OPRA provides for such non-disclosure.

Stop & Shop's OPRA appellate brief also argues its OPRA

lawsuit is not moot because "[a] declaration in this lawsuit

that the documents should have been turned over earlier could

affect" its appeal of the Board of Freeholders' approval of

Inserra's site plan application, as Stop & Shop plans to argue

"the County's indefensible delay in producing the documents

deprived it of a fair hearing and due process of law." However,

Stop & Shop did not raise that argument in its subsequent

appellate brief in the site plan appeal. Moreover, a

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determination of whether there was an OPRA violation would be

unnecessary to resolve whether Stop & Shop received a fair

hearing and due process before the County Planning Board and the

Board of Freeholders. Furthermore, the Board of Freeholders

considered the documents in its de novo review, and we upheld

its approval of the site plan application after considering

those documents. Thus, this appeal is "moot" under OPRA and the

common law because the "decision sought in [this] matter, when

rendered, can have no practical effect on the existing

controversy." Redd v. Bowman, 223 N.J. 87, 104 (2015). Stop &

Shop argues we should review this moot case because "the issue

is of substantial importance, likely to reoccur, but capable of

evading review." Bd. of Educ. v. Kennedy, 196 N.J. 1, 18

(2008). However, none of those requirements are met here.

Stop & Shop cannot avoid the proscription against

litigating moot issues by bringing its action under the

Declaratory Judgment Act (DJA), N.J.S.A. 2A:16-50 to -62. The

DJA provides courts have the power to determine legal issues "in

a proceeding for declaratory relief, in which a judgment will

terminate the controversy or remove an uncertainty." N.J.S.A.

2A:16-52. However, a "court may refuse to render or enter a

declaratory judgment, when, if rendered or entered, it would not

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terminate the uncertainty or controversy giving rise to the

proceeding." N.J.S.A. 2A:16-61.

"[T]he remedy of a declaratory judgment is 'circumscribed

by the salutary qualification that the jurisdiction of the

courts may not be invoked in the absence of an actual

controversy.'" Finkel v. Twp. Comm., 434 N.J. Super. 303, 318

(App. Div. 2013) (quoting N.J. Tpk. Auth. v. Parsons, 3 N.J.

235, 240 (1949)). "[W]here the issue is moot, declaratory

judgment will not lie because of the absence of an actual

controversy." Pressler & Verniero, Current N.J. Court Rules,

comment 1.2 on R. 4:42-3 (2017); see Parsons, supra, 3 N.J. at

240. Because Stop & Shop received the records, its right to

receive them "is a moot issue," and it has no "entitlement to

proceed under the [DJA]." JUA Funding Corp. v. CNA Ins./Cont'l

Cas. Co., 322 N.J. Super. 282, 287 (App. Div. 1999); see

Cornucopia Inst. v. U.S. Dep't of Agric., 560 F.3d 673, 675-76

(7th Cir. 2009) (rejecting the argument that the "court remained

free to issue a declaratory judgment that [the agency] violated

FOIA" after the documents were produced).

Additionally, "[t]he right to relief under the DJA is

procedural in nature; it does not create substantive rights to

relief." In re N.J. Firemen's Ass'n Obligation to Provide

Relief Applications Under Open Pub. Records Act, 443 N.J. Super.

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238, 253 (App. Div. 2015), certif. granted, 224 N.J. 528 (2016).

"A party that lacks a statutory right of action under OPRA may

not obtain declaratory relief regarding its rights or

obligations under OPRA." Id. at 257.

Accordingly, we affirm the Law Division's ruling to the

extent it held Stop & Shop was not entitled to a declaratory

judgment in this moot litigation. We need not decide the OPRA

defendants' "cross-appeal that Stop & Shop lacks standing" to

raise the OPRA claim.

We affirm in appeal A-2134-14 and appeal A-4630-14.

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