CLEARY GIACOBBE ALFIERI JACOBS PREVAILS IN APPELLATE DIVISION AFFIRMING DISMISSAL IN FAVOR OF BOROUGH OF MADISON AND MORRIS COUNTY CONSTRUCTION BOARD OF APPEALS IN CHALLENGE TO DENIAL OF BUILDING PERMIT

The Appellate Division affirmed the trial court’s dismissal of Plaintiff’s complaint challenging the Borough of Madison’s (the “Borough”) denial of a building permit and the Morris County Construction Board of Appeals’ (the “Construction Board”) refusal to reconsider Plaintiff’s appeal for a second time. This decision validates the Borough’s permitting procedures and affirms the Construction Board’s authority to decline to hear duplicative appeals.

In June 2022, Plaintiff submitted a self-prepared application to construct a loft-level storage platform in his residence. The Borough denied the application due to insufficient information regarding subsurface footings and concerns about structural integrity. The Construction Board affirmed Borough’s denial in November 2022. In 2023, Plaintiff submitted a substantially similar revised application to the Borough, adding photographs, citations to the International Residential Code, and a narrative description of the project. The Borough again rejected this submission and Plaintiff again filed an appeal with the Construction Board. In February 2024, the Construction Board declined to accept Plaintiff’s appeal, finding it “almost identical” to the earlier application with no substantial differences addressing the original deficiencies. Plaintiff filed a prerogative writ action against the Borough and the Construction Board.

The Law Division granted the Borough and Construction Board’s motions to dismiss, both of which were affirmed on appeal: (1) The doctrine of res judicata barred re-litigation of issues previously adjudicated in 2022 because Plaintiff’s applications were substantially similar; and (2) Plaintiff failed to meet his burden of proof to demonstrate that the Construction Board acted arbitrarily, capriciously, or unreasonably.

This Appellate Division decision protects municipal permitting processes by: validating res judicata to bar repetitive, substantially similar applications; confirming the limited scope of judicial review prevents supplementation of the administrative record; and rejecting speculative claims of improper municipal practices.

The Appellate Division decision affirms the Borough’s proper exercise of building code enforcement authority and reinforces that applicants cannot circumvent unfavorable decisions by repackaging substantially identical applications.

Marina V. Stinely, Partner of the Firm, represented the Borough in the Trial Court and Appellate Division.