Ten Stary Dom Partnership v. T. Brent Mauro (069079) ( 2013 )


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  •                                                      SYLLABUS
    
    (This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
    convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
    interest of brevity, portions of any opinion may not have been summarized.)
    
                             Ten Stary Dom Partnership v. T. Brent Mauro (A-52-11) (069079)
    
    Argued November 5, 2012 -- Decided August 5, 2013
    
    CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
    
            In this appeal, the Court considers defendant’s entitlement to a bulk variance from a frontage zoning
    requirement and the appropriateness of affirming an order denying a variance without prejudice.
    
              Defendant T. Brent Mauro owns property in the Borough of Bay Head that fronts on 10.02 feet of Willow
    Drive. The property is located in a single-family, residential zone that requires frontage of fifty feet. Mauro’s property
    conforms to all other zoning requirements. Mauro’s initial building permit application was denied based on a finding
    that Willow Drive was not a public street. Thereafter, the Borough Council adopted a resolution permitting Mauro to
    improve Willow Drive to have it certified as a public street. Mauro subsequently filed an application with the
    Planning Board for a variance to permit a single-family home with frontage of 10.02. At the Board hearings, Mauro
    testified that he had attempted, but failed, to acquire adjacent land to conform to the frontage requirement. A licensed
    professional engineer and planner testified, among other things, that a variance denial would make the lot virtually
    useless and that drainage for the site would be designed in accordance with appropriate engineering standards. Mauro
    also submitted architectural plans including fire retardant building materials and a fire suppression system, and a New
    Jersey Department of Environmental Protection (NJDEP) determination authorizing the use of fill on the site and
    construction of a single-family house pursuant to a Freshwater Wetlands Statewide General Permit. Finally, the
    Borough’s fire chief and his assistant testified that the fire company could adequately respond to an on-site emergency
    at the property. In a 5-to-4 vote, the Board granted the variance conditioned on completion of improvements to
    Willow Drive and approval of a stormwater management plan and fire suppression system.
    
              Plaintiff Ten Stary Dom Partnership (Ten Stary Dom), owner of a neighboring property, filed an action in lieu
    of prerogative writs challenging the Board’s action. After the parties confirmed that a voting board member had
    missed relevant meetings, the trial court remanded the matter to the Board for deliberation and a new vote on the
    existing record, and retained jurisdiction. In a 5-to-4 vote, a reconstituted Board denied the frontage variance. The
    Board found that there was not sufficient access to permit the fire department to respond to a fire on the applicant’s
    property; that the property is “in a natural wetland condition,” as designated by the NJDEP, and serves as a drainage
    collector for surrounding properties; and that Mauro failed to provide engineering data addressing a recharge system
    for the property or the amount of fill required. The Board concluded that the application did not promote the
    appropriate use of the land, did not secure safety from fire and flood, did not provide sufficient space for a residential
    use, and did not promote a desirable visual environment or provide adequate light, air, and open space. The Board
    determined that a variance would not advance the purposes of the zoning ordinance and that its denial of a variance
    would not result in undue hardship to Mauro.
    
              The Law Division found that Mauro established the positive criteria but failed to establish the negative
    criteria to support a variance. Primarily citing the inadequacy of the evidence concerning drainage on the property, the
    court found that Mauro failed to carry his burden of proof that reduced frontage would not undermine the zoning plan
    of the community. The trial court, however, affirmed the Board’s denial of the variance without prejudice, thereby
    permitting the applicant to return to the Board with the same application on the same or additional evidence. Both
    parties appealed. The Appellate Division reversed, concluding that Mauro presented sufficient evidence to support the
    negative and positive criteria for the variance and that the Board’s findings were not supported by the record. The
    panel found that Mauro was not obligated to address drainage at the time of the variance approval because drainage is
    an issue relevant to obtaining subsequent site plan review. The panel did not reach the propriety of the trial court’s
    denial without prejudice because it found that the variance should have been approved. This Court granted Ten Stary
    Dom’s petition for certification. 
    209 N.J. 96
     (2011).
    
    HELD: Defendant satisfied the positive and negative criteria and is therefore entitled to a bulk variance from a
    frontage zoning requirement. The trial court’s affirmance of the Board’s denial of the variance without prejudice
    violated the principle of res judicata.
    1. Bulk or dimensional provisions of a zoning ordinance control lot size and building location on a parcel of land.
    N.J.S.A. 40:55D-70(c)(1) permits a variance from a bulk requirement, such as frontage, when, by reason of the
    property’s conditions, strict application of the requirement would present peculiar and exceptional practical difficulties
    or undue hardship to the applicant. Efforts made to bring the property into compliance with the ordinance are relevant
    to hardship. An applicant for a (c)(1) variance must satisfy the negative criteria, which requires proof that the variance
    will not result in substantial detriment to the public good or substantially impair the purpose of the zoning plan.
    N.J.S.A. 40:55D-70(c)(2) permits a variance if the deviation from bulk or dimensional provisions would advance the
    purposes of the zoning plan and if the benefit derived from the deviation would substantially outweigh any detriment.
    The positive criteria include proof that the characteristics of the property present an opportunity to put the property
    more in conformity with development plans and advance zoning purposes. The applicant bears the burden of proving
    both the positive and negative criteria. (pp. 15-18)
    
    2. An application for a (c)(1) or (c)(2) bulk variance often implicates purposes of the Municipal Land Use Law
    (MLUL), N.J.S.A. 40:55D-1 to -163, including promoting public health; minimizing threats from disasters; providing
    adequate light, air, and open space; and promoting a desirable visual environment. Evaluation of a bulk variance
    request, however, must be directed to the specific zoning purposes actually implicated by the request. For example,
    preservation of light, air, and open space may be a valid inquiry in assessing a variance from setback requirements,
    and a variance from lot coverage requirements may implicate drainage and flood concerns. A minor deviation from a
    height restriction, however, may have no impact on the valid goal of maintaining sufficient undeveloped area on a lot
    to foster light, air, and open space. A planning board’s decision is presumptively valid. The party challenging the
    action of a planning board carries the burden of demonstrating that the board acted arbitrarily, capriciously, or
    unreasonably by making a decision not supported by the record. (pp. 18-22)
    
    3. The Board’s findings lack support in the record in all critical respects. Without a variance, the property cannot be
    developed for residential use, the only permitted use in the zone. Mauro’s attempts to cure the nonconformity by
    acquiring adjacent property failed. The Board also disregarded Mauro’s obligation to improve Willow Drive, which
    addresses in part the ability of fire personnel to access the site; the testimony of the fire chief and his assistant that the
    fire company could adequately respond to an on-site emergency; that the plans incorporate a fire suppression system
    and fire retardant materials; and that the NJDEP issued a general permit to bring fill onto the property. In addition,
    the Board ignored that the property conformed in all respects, except frontage, to the zoning ordinance for single-
    family homes. Presumably, the Borough has already determined that a residence constructed on a lot the size of the
    applicant’s meets all setback and height requirements and promotes and provides adequate light, air, and open space,
    and a desirable visual environment. The Board’s findings fail to demonstrate how a ten-foot frontage rather than a
    fifty-foot frontage would constitute a substantial detriment to the zoning plan. (pp. 23-28)
    
    4. The Board afforded undue weight to the drainage factor in evaluating whether a variance from the frontage
    requirement undermined the Borough’s zoning plan. Although drainage and the risk of flooding are legitimate zoning
    concerns, Mauro’s plan is not a development proposal that would add many more units to an existing space. The
    property conforms to the zoning plan’s single-family residential use. The Board delved into concerns that can be
    adequately addressed in another way. A property owner who seeks to construct a house on a residential lot must apply
    for a building permit. See N.J.S.A. 52:27D-130. The municipal building official determines whether the property
    owner’s plans conform to the municipal building standards, including proper drainage and elevation to minimize the
    impact of flooding. Thus, the drainage concerns will be considered during the building permit process. The record
    does not support that Mauro failed to establish the positive or negative criteria for a (c)(1) or (c)(2) variance. (pp. 28-
    30)
    
    5. The trial court’s denial without prejudice, which permitted Mauro to return to the Board with the same application
    on the same or additional evidence, ignored the principle of res judicata. Res judicata bars resubmission of the same
    proposal following a dispositive ruling by a planning board. In this case, it was incumbent on the judge to affirm,
    reverse, or modify the decision of the Board. (pp. 30-32)
    
             The judgment of the Appellate Division is AFFIRMED AS MODIFIED.
    
          CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, HOENS, and PATTERSON; and
    JUDGE RODRÍGUEZ (temporarily assigned) join in JUDGE CUFF’s opinion.
    
    
    
    
                                                                 2
                                          SUPREME COURT OF NEW JERSEY
                                            A-52 September Term 2011
                                                     069079
    
    TEN STARY DOM PARTNERSHIP,
    
        Plaintiff-Appellant,
    
              v.
    
    T. BRENT MAURO and
    THE BOROUGH OF BAY HEAD
    PLANNING BOARD,
    
        Defendants-Respondents.
    
    
              Argued November 5, 2012 – Decided August 5, 2013
    
              On certification to the Superior Court,
              Appellate Division.
    
              Joseph Michelini argued the cause for
              appellant (O'Malley Surman & Michelini,
              attorneys).
    
              Steven A. Zabarsky argued the cause for
              respondent Borough of Bay Head Planning
              Board (Citta, Holzapfel & Zabarsky,
              attorneys; Mr. Zabarsky and Christian E.
              Schlegel, on the letter in lieu of brief).
    
              Richard H. Woods argued the cause for
              respondent T. Brent Mauro.
    
        JUDGE CUFF (temporarily assigned) delivered the opinion of
    
    the Court.
    
        This appeal arises in the context of a ten-year attempt by
    
    the owner of a residential lot to build a house.    We review a
    
    judgment of the Appellate Division reversing the denial of an
    
    application for a variance, without prejudice, from the frontage
    requirement in the zone and ordering issuance of a bulk
    
    variance.   This appeal permits us to address the weight to be
    
    accorded site-specific conditions, such as drainage, when the
    
    proposed development conforms to the zoning requirements in all
    
    respects but frontage.   We also address the appropriateness of
    
    affirming an order denying a variance without prejudice.
    
                                    I.
    
        Defendant T. Brent Mauro owns a lot in the Borough of Bay
    
    Head (Borough).   The lot is fifty feet by ninety-five feet and
    
    located on Willow Drive, a 500-foot long passage best described
    
    as a lane or alley.   Garages for the homes fronting on the
    
    streets north and south of Willow Drive line the lane.          Mauro’s
    
    property is situated at the end of the lane and fronts only on
    
    10.02 feet of Willow Drive.
    
        The property is located in a single-family, residential
    
    zone that requires frontage of fifty feet.       The property
    
    conforms to all other zoning requirements, including lot size,
    
    and the proposed residence conforms to all setback and height
    
    requirements of the zone.   Three easements, which benefit the
    
    property, one for emergency access and two for utilities,
    
    traverse neighboring properties.       The property is unimproved and
    
    accepts natural drainage from the neighboring properties and
    
    Willow Drive.
    
    
    
    
                                       2
        Mauro’s attempt to build a single-family house on the lot
    
    commenced in 2002.   In September 2002, the Borough Attorney
    
    rendered an opinion that Willow Drive was not a municipal
    
    street; as a result, the zoning officer denied Mauro’s
    
    application for a building permit.   See N.J.S.A. 40:55D-35
    
    (requiring lot to abut public street for building permit to
    
    issue).   Mauro filed an action in lieu of prerogative writs
    
    challenging that decision.   The matter was resolved when the
    
    Borough Council adopted a resolution on January 17, 2006,
    
    permitting Mauro to improve Willow Drive in accordance with the
    
    engineering specifications utilized to improve another street in
    
    the Borough.   The Borough Council directed that, if improved in
    
    accordance with those specifications, Willow Drive would be
    
    certified as a public street.   A January 3, 2006 order in the
    
    action contesting the 2002 denial of the building permit
    
    provided that Mauro “will be entitled to a building permit
    
    subject to improvement of Willow Drive in accordance with the
    
    governing body’s requirements, and [Mauro] obtaining a frontage
    
    variance and any other variances, if required by the Planning
    
    Board.”
    
        Mauro filed an application with defendant the Borough of
    
    Bay Head Planning Board (Planning Board or Board) for a bulk
    
    variance pursuant to N.J.S.A. 40:55D-70(c) to permit development
    
    of the property with a frontage of 10.02 feet rather than the
    
    
                                     3
    required fifty feet.    The Board conducted hearings on three
    
    dates:   August 15, 2007; September 19, 2007; and November 28,
    
    2007.    Mauro testified that the proposed single-family dwelling
    
    would meet all bulk requirements other than frontage.     He
    
    testified that he had attempted, but failed, to acquire
    
    additional land from neighboring property owners to conform to
    
    the frontage requirement.    He also testified that his
    
    discussions with neighboring property owners to purchase his lot
    
    had “come to a halt.”
    
        Mauro presented testimony from Robert Burdick, a licensed
    
    professional engineer and professional planner, who confirmed
    
    that the best use of the property was single-family residential.
    
    Burdick also stated that “the denial of the variance would
    
    certainly represent an exceptional and undue hardship on [Mauro]
    
    . . . by making the lot virtually useless.”    He confirmed that
    
    the lot and the proposed single-family house conformed in all
    
    other respects to the zoning ordinance and that the easement for
    
    emergency access and the access provided by Willow Drive would
    
    permit response by emergency vehicles and personnel to an
    
    emergency on the property.    Finally, Burdick testified that the
    
    drainage for the site would be designed in accordance with
    
    appropriate engineering standards and that runoff would not flow
    
    onto the neighboring properties.
    
    
    
    
                                       4
        Mauro submitted a determination from the New Jersey
    
    Department of Environmental Protection (NJDEP) authorizing the
    
    use of fill on the site and construction of a single-family
    
    house pursuant to a Freshwater Wetlands Statewide General
    
    Permit.   Mauro also submitted architectural plans for the
    
    proposed house.   The specifications included a fire suppression
    
    system and use of fire retardant building materials.
    
        The Board subpoenaed two witnesses to address fire safety.
    
    William Vander Noot, Chief of the Bay Head Fire Company,
    
    conceded that only one truck could be brought down Willow Drive,
    
    but he also testified that fighting a fire on the subject
    
    property would not necessarily be more dangerous than on any
    
    other property.   William Boyle, Assistant Chief, concurred with
    
    Vander Noot.   Both men stated that the installation of
    
    residential sprinklers in the proposed structure, the use of
    
    fire retardant building materials, and the installation of a
    
    fire hydrant on Willow Drive, as required by the road
    
    improvements, would assist fighting a fire on the property.
    
        Several members of the public opposed the variance.      A
    
    member of plaintiff Ten Stary Dom Partnership (Ten Stary Dom),
    
    owner of a neighboring property, expressed concerns about the
    
    recharge system and stormwater run-off onto adjacent properties,
    
    the aesthetic impact of a ten-foot frontage, the after-
    
    
    
    
                                     5
    improvement width of Willow Drive, safety of children playing on
    
    Willow Drive, and fire safety.
    
        On November 28, 2007, in a 5-to-4 vote, the Board granted
    
    the variance.   The Board conditioned the variance on completion
    
    of improvements to Willow Drive and further provided that a
    
    building permit could not issue until completion of those
    
    improvements.   In addition, the house constructed on the
    
    property was required to conform to the plans submitted in
    
    support of the variance, the Board Engineer’s approval of the
    
    stormwater management plan was necessary, and a fire sub-code
    
    official’s approval of the fire suppression system installed in
    
    the structure was required.   In its resolution, the Board
    
    determined that failure to grant the variance would result in
    
    undue hardship to Mauro and that the variance could be granted
    
    without undue detriment to the public good and would not “impair
    
    the intent and purpose of the zone plan, master plan and/or
    
    zoning ordinances.”   The resolution incorporated the following
    
    findings of fact:
    
             2. The application for development does not
             block the light, air or space of any
             adjacent property owners based upon the
             dimensions of the house as provided for in
             the elevation and architectural plans as
             well as the placement of the house, and,
             therefore, providing for the setbacks as
             established during the testimony.
    
             3.   The property . . . has an exceptional
             and unique configuration in that it only has
    
    
                                     6
             10 feet of frontage on Willow Drive which is
             a preexisting, non-conforming condition and
             also   constitutes   an   extraordinary   and
             exceptional situation uniquely affecting the
             specific piece of property which results in
             peculiar     and    exceptional     practical
             difficulties and undue hardship to the
             Applicant.
    
             . . . .
    
             5.   The application for development and the
             lot itself completely conforms to all the
             zoning requirements of the [Borough] except
             for lot frontage.
    
             6.   . . . [T]here are adequate provisions
             for emergency services to be provided to the
             subject property . . . .
    
             7. The proposed     application for development
             will contribute      to the desirable visual
             environment of      the neighborhood as the
             aesthetics   of     the   house   proposed  are
             consistent   with      those   houses   in  the
             [Borough] and the   surrounding neighborhood.
    
                                      II.
    
        Ten Stary Dom filed an action in lieu of prerogative writs
    
    challenging the Board’s action.        It argued that the Board acted
    
    arbitrarily, capriciously, and unreasonably by granting the
    
    frontage variance.    Ten Stary Dom also asserted irregularities
    
    in the Board proceedings approving the variance, specifically
    
    the participation of a member who had not attended all of the
    
    meetings and had not read the transcripts or listened to tapes
    
    of the proceedings.   After all parties confirmed that
    
    
    
    
                                       7
    allegation, the trial court remanded the matter to the Board for
    
    deliberation and a new vote on the existing record.
    
        On December 19, 2009, a reconstituted Board1 considered the
    
    application on the same record compiled by the applicant in
    
    support of his August 2006 variance application.     The Board, by
    
    a 5-to-4 vote, denied the frontage variance.     The Board founded
    
    its decision on concerns expressed by neighboring property
    
    owners about drainage and the water recharge system.     The Board
    
    also cited fire safety and aesthetic concerns.     In its January
    
    20, 2010 resolution, the Board determined that the failure to
    
    grant the variance would not result in undue hardship to the
    
    applicant and the purposes of the zoning ordinance would not be
    
    advanced by a deviation from the zoning ordinance.     The
    
    resolution incorporated the following findings of fact:
    
                    1.   The subject property in question
             is located at the dead end of a 500 foot
             alley,    subject    to   the  requirement   of
             constructing a road, with a width arguably
             between 18 and 20 feet.         Therefore, for
             emergency purposes, only one (1) fire truck
             or such other emergency vehicle can access
             the site to the exclusion of all others.
             When fighting a fire, the usual three (3)
             fire trucks which respond to a fire will
             only be able to fight the fire with one (1)
             truck    on   Willow    Drive and   the   other
             emergency vehicles located on either Park
             Avenue or Bridge Avenue.         This poses a
             substantial risk to the improvements located
    
    1
      During the period between the adoption of the November 2007
    resolution and remand, there had been a change of membership on
    the Board.
    
                                    8
    on the property as well as any persons
    located at the property at the time of a
    fire or emergency due to the limited access
    to the property.     Further, if there is a
    vehicle parked on Willow Drive at the time
    of   a  fire,   there   will  be  no   access
    whatsoever for a fire truck to be parked
    adjacent to the property to fight a fire.
    
          2.   The subject property is designated
    by     the    New    Jersey    Department    of
    Environmental     Protection  as    a   wetland
    property.     The property is in a natural
    wetland condition and, during rain, the
    property is known as “the swamp”.            In
    addition, water runs down Willow Drive
    toward the subject property and accumulates
    run off from other adjacent properties as
    well.      There have been no calculations
    provided to the Planning Board as to how a
    recharge system would actually be designed
    and/or work successfully with regard to the
    subject property.        There have been no
    calculations provided to the Planning Board
    with regard to the amount of fill which will
    be necessary, nor topographic surveys or
    soil investigations performed to determine
    the exact elevation which will result from
    filling of the wetland on the property, as
    well as the design of a recharge system so
    that all storm water which runs onto the
    property or is on the property shall be
    recharged into the ground and not further
    run off to any adjacent property owners or
    onto Willow Drive.
    
         3.   The subject property is surrounded
    by six (6) residential houses. To the north
    side of the property, there are three (3)
    residential houses which have rear yards
    extending to what will be the subject
    property’s side yard.    In addition, to the
    southern portion of the property, there are
    two (2) houses which have rear yards which,
    again, will abut to the side yard of the
    subject property.    Finally, located in the
    
    
    
                          9
             very front yard of the property,            will    be
             another residential dwelling.
    
                  4.    The subject property has only 10
             feet of lot frontage on a 20 foot wide
             alley/road which greatly prohibits access to
             the subject property, having only 20% [] of
             the necessary 50 feet of road frontage
             pursuant to the Borough of Bay Head Land Use
             Ordinance.
    
                  5.    The application for development
             does not promote the purposes of zoning
             under the State Municipal Land Use Law and,
             more specifically, does not:
    
                  A.    Encourage an appropriate use or
             development of land which promotes the
             public health, safety and general welfare.
    
                  B.     Secure   safety     from      fire     and
             flood.
    
                  C.    Provide sufficient space for a
             residential use according to environmental
             requirements in order to meet the needs of
             the homeowners of the adjacent properties.
    
                  D.   Promote      a      desirable      visual
             environment.
    
                  E.   Provide    adequate   light,     air     and
             open space.
    
        The Law Division had retained jurisdiction when it remanded
    
    the matter to the Board.   Thus, Mauro filed a petition with the
    
    Law Division to review the January 20, 2010 resolution.             Mauro
    
    asserted that the denial of the variance was arbitrary,
    
    capricious, and unreasonable because the findings were
    
    inconsistent with the Board’s previous findings.          He also
    
    
    
    
                                    10
    contended that the denial of the variance constituted a taking
    
    of his property without just compensation.
    
        By order dated July 13, 2010, the Law Division affirmed the
    
    action of the Board without prejudice.    The order provided that
    
    Mauro “shall have the right to file a new application with the
    
    Board seeking the same or such other relief” to permit
    
    development of the property.   In his June 17, 2010 oral opinion,
    
    the judge determined that Mauro had not carried his burden to
    
    establish the negative criteria to support a variance.     That is,
    
    Mauro failed to carry his burden of proof that reduced frontage
    
    would not undermine the zoning plan of the community.    The judge
    
    further explained that the critical inadequacy of Mauro’s proof
    
    concerned drainage.   The judge stated:
    
             This court finds that the Board’s denial of
             the application in the face of the absence
             of critical evidence presented is neither
             arbitrary    nor   unreasonable.      [Mauro’s]
             application might have been more persuasive
             if the only issue was fire safety.       Such a
             denial    in     the   face    of    relatively
             uncontroverted testimony might arguably be
             arbitrary and unreasonable.       However, the
             Board’s denial on the issue of drainage and
             water displacement is neither arbitrary nor
             unreasonable. This is because the Board has
             the legal right to require proofs regarding
             drainage and water displacement.      See Field
             [v. Mayor & Council of Franklin, 190 N.J.
             Super. 326 (App. Div.), certif. denied, 
    95 N.J. 183
     (1983);] Morris C[nty.] Fair Hous.
             [Council v. Boonton Twp., 
    230 N.J. Super. 345
     (App. Div. 1989)].
    
    
    
    
                                    11
        The judge explained, however, that the denial was without
    
    prejudice “because the case in and of itself is relatively
    
    unusual and unique in its history.”    He reasoned that a new,
    
    fully constituted Board should have the opportunity to hear the
    
    application anew, address questions to the witnesses, and
    
    “determine for itself whether[,] in addition to meeting the
    
    safety concerns, the potential flooding in adjacent properties
    
    could be adequately addressed by applying reasonable and
    
    appropriate engineering principles and design.”   The judge also
    
    expressed a concern that the remand procedure adopted by the
    
    court, which confined the remand to the record compiled in 2007,
    
    did not permit “a fair exchange with the Board,” particularly
    
    relating to the drainage issues on the site and in the
    
    neighborhood.
    
                                    III.
    
        Ten Stary Dom appealed the Law Division’s decision
    
    affirming without prejudice the Board’s denial.   Mauro cross-
    
    appealed, similarly challenging the Law Division ruling that the
    
    denial was without prejudice and also disputing the decision
    
    affirming the Board’s denial.
    
        The Appellate Division concluded that the Board’s findings
    
    of fact and expressed reasons for denying the variance were
    
    insufficient.   The panel found that drainage is an issue
    
    relevant to obtaining site plan approval rather than a zoning
    
    
                                     12
    variance and that Mauro was not obligated to convince the Board
    
    such a plan existed at the time of the bulk variance approval.
    
    The panel determined it was “unreasonably speculative to
    
    consider a possible component of [Mauro’s] future drainage plan
    
    when denying his requested variance.”    Finally, the panel
    
    declined to reach the denial without prejudice because it found
    
    that the variance should have been approved.    Accordingly, the
    
    Appellate Division reversed the denial of the variance, finding
    
    that Mauro presented sufficient evidence to support the variance
    
    and concluding that the Board acted unreasonably by denying the
    
    requested relief.   The panel remanded for the grant of the bulk
    
    variance.   This Court granted Ten Stary Dom’s petition for
    
    certification.   
    209 N.J. 96
     (2011).
    
                                    IV.
    
        Ten Stary Dom contends that N.J.S.A. 40:55D-37(a)
    
    establishes that applications for single-family homes are exempt
    
    from site plan review and approval by a planning board.
    
    Accordingly, it maintains the Appellate Division incorrectly
    
    found that drainage issues could be considered by the Board
    
    during the site plan approval process.    Ten Stary Dom also
    
    argues that, in finding drainage is an improper consideration
    
    for a variance request, the Appellate Division denied the Board
    
    the “sole opportunity to engage in meaningful review of all
    
    aspects of the application,” that those concerns are the sole
    
    
                                    13
    province of the Board, and that the Appellate Division erred by
    
    shifting review of drainage issues to the site plan review
    
    stage.   It also argues the Appellate Division impermissibly
    
    substituted its own judgment for that of the Board in deciding
    
    to grant Mauro’s application as there was sufficient evidence in
    
    the record to support the Board’s conclusion that Mauro failed
    
    to make a sufficient showing of hardship.
    
        Mauro concedes that the Appellate Division improperly
    
    stated his development plan was subject to site plan review;
    
    however, he maintains that the “misstatement” was dictum and
    
    does not undermine the heart of its decision.   Mauro argues that
    
    the panel’s remand to adopt a resolution granting approval was
    
    based on the panel’s finding that he met both the positive and
    
    negative criteria required by the statute.
    
        The Board argues its findings of fact and conclusions of
    
    law amply support its finding that the applicant failed to
    
    satisfy his burden of proving the negative criteria.    The Board
    
    contends Mauro failed to provide adequate testimony regarding
    
    numerous issues related to the variance, including how the
    
    drainage and recharge system would work and whether the proposed
    
    structure conflicted with the character of the neighborhood.
    
    Additionally, the Board maintains that the decision to deny the
    
    application without prejudice was proper, noting that, given the
    
    conflicting decisions on the same record, it would be
    
    
                                    14
    “fundamentally unfair to deny [d]efendant Mauro the opportunity
    
    to resubmit his application to the current Board and be heard
    
    anew” and would deny Mauro due process.
    
                                     V.
    
        Provisions in a zoning ordinance that control the size and
    
    shape of a lot and the size and location of buildings or other
    
    structures on a parcel of property are known as bulk or
    
    dimensional requirements.   See N.J.S.A. 40:55D-65(b)
    
    (authorizing zoning ordinance to regulate bulk, height,
    
    orientation, and size of buildings and other structures).     See
    
    also Morris Cnty. Fair Hous. Council, supra, 230 N.J. Super at
    
    353 (noting that “bulk area and yard requirements, density,
    
    distance between buildings, off-street parking and floor area
    
    ratio” are not design requirements but ordinance requisites from
    
    which deviations require variance).    Many ordinances dictate a
    
    minimum amount of frontage required on a public street and
    
    provide that a building permit may not issue to erect any
    
    building or structure on a lot that does not front a public
    
    street.   N.J.S.A. 40:55D-35.   Here, after the applicant agreed
    
    to improve Willow Drive in accordance with standards prescribed
    
    by the Board Engineer and the governing body agreed to accept
    
    Willow Drive as a public street, Mauro applied for a bulk
    
    variance from the ordinance requiring fifty feet of frontage on
    
    a public street.   We, therefore, commence our discussion with
    
    
                                     15
    the standard to be applied by a planning board to an application
    
    for a bulk variance.
    
         N.J.S.A. 40:55D-70(c)(1) permits a variance from a bulk or
    
    dimensional provision of a zoning ordinance, such as frontage,
    
    when, by reason of exceptional conditions of the property,
    
    strict application of a bulk or dimensional provision would
    
    present peculiar and exceptional practical difficulties or
    
    exceptional hardship to the applicant.   Such exceptional
    
    conditions may include the dimensions of the property,
    
    topographic conditions, or some other extraordinary or
    
    exceptional feature unique to the property.    Ibid.   Undue
    
    hardship does not include personal hardship to the property
    
    owner.   Jock v. Zoning Bd. of Adjustment of Wall, 
    184 N.J. 562
    ,
    
    590 (2005).   Rather, it refers to the particular condition of
    
    the property.   Ibid.   Hardship, however, is not synonymous with
    
    complete inutility due to the land use restriction, Kaufmann v.
    
    Planning Bd. for Warren Twp., 
    110 N.J. 551
    , 561-62 (1988),
    
    although the inability to use the property for any productive
    
    use absent a variance often informs the decision to grant a
    
    variance from bulk requirements, Chirichello v. Zoning Bd. of
    
    Adjustment of Monmouth Beach, 
    78 N.J. 544
    , 557-58 (1979).
    
         An applicant who pursues a variance under N.J.S.A. 40:55D-
    
    70(c)(1) must establish that the particular conditions of the
    
    property present a hardship.   The efforts made to bring the
    
    
                                     16
    property into compliance with the ordinance are factors that must
    
    be considered.     Jock, supra, 184 N.J. at 594; Commons v. Westwood
    
    Zoning Bd. of Adjustment, 
    81 N.J. 597
    , 606 (1980).    Those efforts
    
    may include attempts to acquire additional land or offers to sell
    
    the nonconforming lot to adjacent property owners.     Jock, supra,
    
    184 N.J. at 594.
    
         In addition, an applicant for a (c)(1) variance must
    
    satisfy the negative criteria.     Nash v. Bd. of Adjustment of
    
    Morris Twp., 
    96 N.J. 97
    , 102 (1984).     The negative criteria
    
    require proof that the variance will not result in substantial
    
    detriment to the public good or substantially impair the purpose
    
    of the zoning plan.     Ibid.
    
         N.J.S.A. 40:55D-70(c)(2) permits a variance for a specific
    
    property, if the deviation from bulk or dimensional provisions
    
    of a zoning ordinance would advance the purposes of the zoning
    
    plan and if the benefit derived from the deviation would
    
    substantially outweigh any detriment.     The applicant bears the
    
    burden of proving both the positive and negative criteria.
    
    Nash, supra, 96 N.J. at 106.
    
         For a (c)(2) variance, approval must be rooted in the
    
    purposes of the zoning ordinance rather than the advancement of
    
    the purposes of the property owner.     Kaufmann, supra, 110 N.J. at
    
    562-63.   Thus, the positive criteria include proof that the
    
    characteristics of the property present an opportunity to put the
    
    
                                       17
    property more in conformity with development plans and advance
    
    the purposes of zoning.     Id. at 563-64.   As with the (c)(1)
    
    variance, the negative criteria include proof that the variance
    
    would not result in substantial detriment to the public good or
    
    substantially impair the purpose of the zone plan.     Id. at 565.
    
         An application for a bulk or dimensional variance pursuant
    
    to either N.J.S.A. 40:55D-70(c)(1) or (c)(2) often implicates
    
    several purposes of the Municipal Land Use Law (MLUL), N.J.S.A.
    
    40:55D-1 to -163, including to encourage a municipality to guide
    
    development of land in a manner that will promote the health,
    
    safety, and welfare of its residents, N.J.S.A. 40:55D-2(a); to
    
    minimize or control threats to the public safety from “fire,
    
    flood, . . . and other natural or man-made disasters,” N.J.S.A.
    
    40:55D-2(b); and to provide “adequate light, air, and open
    
    space,” N.J.S.A. 40:55D-2(c).    A municipality is also authorized
    
    to guide development that will promote “a desirable visual
    
    environment,” N.J.S.A. 40:55D-2(i), and to establish “appropriate
    
    population densities,” N.J.S.A. 40:55D-2(e).
    
         In Kaufmann, supra, a planning board granted a variance
    
    permitting a subdivision of an over-sized lot into two lots
    
    “marginally insufficient in respect to frontage and side-yard
    
    requirements” but fully consistent with all other bulk
    
    requirements in the zone.    110 N.J. at 563, 565.   The Law
    
    Division reversed the action of the planning board, and an
    
    
                                       18
    appellate panel affirmed.    Id. at 556.   This Court determined
    
    that the application presented a situation representative of the
    
    purpose of the newly-enacted (c)(2) provision because the
    
    subdivision plan with minor deviations from the bulk requirements
    
    in the zone permitted two lots harmonious in size with
    
    neighboring properties when balanced against little, if any, harm
    
    to the zone plan.    Id. at 565.
    
            A variance from bulk requirements in a zoning ordinance
    
    often arises in the context of an isolated nonconforming lot.
    
    Frequently, such applications concern an undersized lot.    One
    
    commentator has observed that “[a]n isolated undersized lot is
    
    almost always entitled to a dimensional variance.”    36 New Jersey
    
    Practice, Land Use Law § 15.9, at 364 (David J. Frizell) (3d ed.
    
    2005); see also Jock, supra, 184 N.J. at 575 (noting undue
    
    hardship due to undersized nature of lot); Harrington Glen, Inc.
    
    v. Mun. Bd. of Adjustment of Leonia, 
    52 N.J. 22
    , 28 (1968)
    
    (discussing right to relief from zoning ordinance for undersized
    
    lot).    Nonetheless, the applicant must still satisfy the positive
    
    and negative criteria for either a (c)(1) or (c)(2) variance.
    
            Site conditions, including access and drainage, are valid
    
    considerations of a board when the relief requested implicates
    
    those conditions.     In Chirichello, supra, this Court recognized
    
    that the magnitude of the deviation from the bulk or dimensional
    
    requirements of the zoning ordinance and the impact on the
    
    
                                       19
    zoning plan are often a matter of degree and that a board’s
    
    consideration of a variance should recognize that fact.     78 N.J.
    
    at 561.   We stated:
    
              We have also adverted to the fact that an
              impingement of the zoning restrictions may
              be of varying degrees.      The less of an
              impact, the more likely the restriction is
              not that vital to valid public interests.
              Conversely, where the change sought is
              substantial, the applicant will have to
              demonstrate  more   convincingly  that  the
              variance will not be contrary to the public
              good and general welfare expressed in the
              ordinance.
    
              [Ibid.]
    
    In other words, care must be taken to direct the evaluation of a
    
    request for a bulk variance to those purposes of zoning that are
    
    actually implicated or triggered by the requested relief.
    
    However, not every deviation from prescribed bulk standards
    
    implicates the same concerns.
    
        Thus, if an applicant seeks a variance from setback
    
    requirements, traditional zoning concerns such as preservation
    
    of light, air, and open space may be valid inquiries in an
    
    assessment of the impact of the requested variance.   If an
    
    applicant seeks a variance from lot coverage requirements,
    
    drainage may be a valid inquiry in an assessment of the impact
    
    of the requested variance on the surrounding properties.
    
    Similarly, a subdivision application that will create additional
    
    lots and permit intensified development of the property prompts
    
    
                                    20
    examination of traditional zoning purposes, including light,
    
    air, open space, access, and drainage.    For example, in Field,
    
    supra, the Appellate Division outlined the authority of a board
    
    or municipal governing body to delve into the details of
    
    drainage and sanitary sewer facilities in the context of an
    
    approval of a 396.5 acre tract for a planned unit development
    
    (PUD).   190 N.J. Super. at 328-29.   As proposed, the PUD would
    
    consist of 1332 townhomes and 1332 garden apartment units,
    
    commercial development on 19.85 acres, and open space on 99.36
    
    acres.   Id. at 328.   It is in that context that the Appellate
    
    Division stated that
    
               [i]t is evident that a municipality cannot
               guide the use and development of lands in
               this state if fundamental elements of a
               development plan are left unresolved before
               preliminary approval, leaving them instead
               for an unspecified later day. . . . Certain
               elements -– for example, drainage, sewage
               disposal and water supply -– may have such a
               pervasive impact on the public health and
               welfare in the community that they must be
               resolved at least as to feasibility of
               specific   proposals  or   solutions  before
               preliminary approval is granted. . . .    If
               the applicant fails to provide sufficient
               information on the fundamental elements of
               his plan, preliminary approval should be
               denied.
    
               [Id. at 332-33.]
    
        On the other hand, some variances from prescribed bulk
    
    requirements may not implicate some of the otherwise valid
    
    zoning purposes advanced by other bulk variances.    For example,
    
    
                                     21
    a minor deviation from a height restriction has no impact on lot
    
    coverage and the valid goal of maintaining sufficient
    
    undeveloped area on a lot to foster light, air, and open space.
    
    A deviation from prescribed lot frontage may have no impact on
    
    any valid zoning purpose other than the stated public interest
    
    in location of all lots on a public street.   See Kaufmann,
    
    supra, 110 N.J. at 564-65 (finding lots with deficient frontage
    
    not unharmonious with neighboring properties).
    
         Finally, we acknowledge the wide latitude accorded to a
    
    municipal planning board in the exercise of its delegated
    
    discretion.   A board’s decisions are presumptively valid, and a
    
    court may not substitute its own judgment for that of the board
    
    unless there has been a clear abuse of discretion by the board.
    
    Id. at 558; Davis Enters. v. Karpf, 
    105 N.J. 476
    , 485 (1987).
    
    The party challenging the action of a planning board carries the
    
    burden of demonstrating that the board acted arbitrarily,
    
    capriciously, or unreasonably.   Smart SMR of N.Y., Inc. v. Fair
    
    Lawn Bd. of Adjustment, 
    152 N.J. 309
    , 327 (1998).   A board acts
    
    arbitrarily, capriciously, or unreasonably if its findings of
    
    fact in support of a grant or denial of a variance are not
    
    supported by the record, ibid., or if it usurps power reserved
    
    to the municipal governing body or another duly authorized
    
    municipal official, Leimann v. Bd. of Adjustment of Cranford, 
    9 N.J. 336
    , 340 (1952).
    
    
                                     22
                                    VI.
    
        Applying those principles, we conclude that Mauro satisfied
    
    both the positive and negative criteria to obtain a variance
    
    from the frontage regulations of the zone.   In focusing on the
    
    failure of the applicant to present an engineering plan
    
    calculated to solve the identified drainage issue on the lot,
    
    the Board and trial court misperceived the weight to be afforded
    
    to that factor in evaluating whether a variance from the
    
    frontage requirements of the zone undermined the zoning plan of
    
    the Borough.   That focus also ignored the authority of the Board
    
    to impose conditions, such as submission of a satisfactory plan
    
    to address on-site drainage issues, for issuance of a building
    
    permit.   In addition, the Board’s findings in all critical
    
    respects lack support in the record.
    
        In its second resolution, the Board found that the improved
    
    lane still did not afford sufficient access to permit the fire
    
    department to respond to a fire on the applicant’s property.
    
    The Board also found that the property is “in a natural wetland
    
    condition,” as designated by the NJDEP, and that the property
    
    serves as a drainage collector for surrounding properties.     The
    
    Board cited the absence of engineering data addressing a
    
    recharge system for the property or the amount of fill required
    
    or topographic surveys or soil surveys.   It, therefore,
    
    concluded that the application did not promote the appropriate
    
    
                                    23
    use of the land, did not secure safety from fire and flood, did
    
    not provide sufficient space for a residential use, and did not
    
    promote a desirable visual environment or provide adequate
    
    light, air, and open space.
    
           The trial court determined that Mauro satisfied his burden
    
    of proving that the property has an exceptional and unique
    
    configuration that presents a peculiar and undue hardship to
    
    him.   In doing so, it found that critical findings made by the
    
    Board in support of its resolution had no support in the record.
    
    The court accepted as unrebutted that the property would be
    
    rendered useless without a variance from the frontage
    
    requirement.   The trial court also recognized that the
    
    improvement of Willow Drive by the applicant would address the
    
    public safety requirements of health, safety, and welfare.         The
    
    trial court cited the unrefuted testimony of the fire chief that
    
    fire equipment suitable to fight a fire on the premises could
    
    gain access to the property by the improved drive and from
    
    public streets to the north and south of the property.       The
    
    court acknowledged that Mauro’s property meets all other
    
    requirements of the R-50 zone.    Finally, the trial court
    
    concluded that Mauro had made efforts to bring the property into
    
    conformity by offering to buy adjacent property or by offering
    
    to sell his property to adjacent owners.
    
    
    
    
                                     24
        The Appellate Division determined that the trial court did
    
    not exceed its authority in its review of the Board’s findings
    
    regarding the positive criteria.     The panel agreed that the
    
    critical findings undergirding the Board’s evaluation of Mauro’s
    
    evidence concerning the configuration of the lot, the hardship
    
    presented by the physical characteristics of the lot, and the
    
    furtherance of the purposes of the zoning plan by the requested
    
    relief were not supported by the record.     Our review of the
    
    record underscores the correctness of the determination by the
    
    Appellate Division and the trial court that the Board’s findings
    
    of fact regarding the applicant’s satisfaction of the positive
    
    criteria were not supported by the record.
    
        To be sure, the deviation from the frontage provision in
    
    the ordinance is substantial in this case.     The size of the
    
    deviation, however, illustrates the unique and exceptional
    
    character of the property.   The magnitude of the discrepancy
    
    between the required frontage and the actual frontage of the
    
    property also informs the critical question of hardship because,
    
    without a variance, the property cannot be developed for
    
    residential use, the only permitted use in the zone.     There is
    
    no suggestion in the record of any other permitted use of the
    
    property in its current condition.    Nor is there any suggestion
    
    that the applicant did not make a good faith effort to cure the
    
    nonconformity by acquiring adjacent property or to alleviate the
    
    
                                    25
    need for variance relief by selling his property to adjacent
    
    property owners.
    
        The Board’s findings also disregarded the obligation
    
    imposed on the applicant by the municipal governing body to
    
    improve Willow Drive.   Pursuant to the terms of the January 17,
    
    2006 resolution, any development of the property must be
    
    preceded by improvement of Willow Drive in accordance with
    
    standards that permit the Borough to accept it as a public
    
    street.   The satisfaction of that antecedent act addresses in
    
    part the ability of fire apparatus to gain access to the site to
    
    fight a fire or for any other emergency situation.   Yet, the
    
    Board ignored the improvement of the drive, the testimony of the
    
    fire chief and his assistant that the fire company from the
    
    Borough and neighboring towns could adequately respond to any
    
    on-site emergency, and the plans for the house to be constructed
    
    on the subject property incorporating a fire suppression system
    
    and fire retardant materials.
    
        The Board’s findings that development of the property would
    
    not provide adequate light, air, or open space disregard the
    
    fact that the property conformed in all respects, except
    
    frontage, to the zoning ordinance for single-family homes in the
    
    R-50 zone.   Presumably, the Borough has already determined that
    
    a residence constructed on a lot the size of the applicant’s
    
    meets all setback and height requirements and promotes and
    
    
                                    26
    provides adequate light, air, and open space, and a desirable
    
    visual environment.
    
        The trial court determined, however, that the applicant
    
    failed to provide adequate information to address drainage and
    
    water displacement.     According to the court, that omission
    
    justified a finding that the applicant failed to carry his
    
    burden that the reduced frontage would not undermine the zoning
    
    plan of the community.    The Appellate Division determined that
    
    the applicant had no obligation to convince the Board that a
    
    drainage plan existed.    The panel observed that drainage is
    
    typically a matter for site plan review and the bulk variance
    
    requested here could be conditioned on later approval of a
    
    proper drainage plan.
    
        The Board and the objector contend that the Appellate
    
    Division founded its decision on a misstatement of the law.
    
    They emphasize that, contrary to the panel’s statement, Mauro is
    
    not required to seek site plan review for development of a
    
    single lot.   That misstatement, however, does not undercut the
    
    validity of the panel’s opinion, because a property owner who
    
    seeks to construct a house on a residential lot must apply for a
    
    building permit.   See N.J.S.A. 52:27D-130.    The building
    
    official, in turn, is required to determine whether the building
    
    plan conforms to all requirements to construct a home, including
    
    a proper drainage plan and proper elevation to minimize the
    
    
                                      27
    impact of flooding.2   See N.J.S.A. 52:27D-131(a); N.J.A.C. 5:23-
    
    2.15A.
    
         We, as the Appellate Division did, determine from our
    
    review of the record that the ultimate finding that the proposed
    
    variance and subsequent development would result in substantial
    
    detriment to the public good or zone plan is not supported by
    
    the record.   For example, the Board found that the property is
    
    in a natural wetland condition but disregarded the issuance of a
    
    general permit by the NJDEP to bring fill onto the property.
    
    The Board’s findings also fail to demonstrate how a ten-foot
    
    
    
    
    2
         The trial court’s reliance on Field and Morris County Fair
    Housing Council may have contributed to the appellate panel’s
    misstatement about the availability of site plan review. In
    Field, supra, an application for a PUD on almost 400 acres
    justified the board’s close examination of sewage and drainage.
    190 N.J. Super. at 328, 333-34. Such close attention is hardly
    applicable to the development of a lot in a residential zone
    that conforms in all respects to local zoning requirements but
    for the lack of sufficient frontage on a public street.
         Similarly, in Morris County Fair Housing Council, supra,
    the Appellate Division recognized that the appearance of a house
    to be built on a nonconforming lot was a legitimate concern to a
    board when considering whether to grant a “c” variance. 230
    N.J. Super. at 357. Yet, the panel also determined that
    appearance was irrelevant when the relief requested, i.e., a
    bridle path and conservation easement in place of a fifty-foot
    landscaped buffer, would effectively screen the proposed
    development in a different manner. Id. at 350, 357-58. In
    other words, a board cannot use the occasion of a request for a
    waiver of a site plan regulation or a request for a variance
    from a density provision of an ordinance to delve into areas not
    implicated by the application or which can be adequately
    addressed in another fashion.
    
    
    
                                    28
    frontage rather than a fifty-foot frontage would constitute a
    
    substantial detriment to the zone plan.
    
        Here, the record reveals that the Board utilized the
    
    occasion of a request for a variance from a density standard to
    
    delve into other concerns that can be adequately addressed in
    
    another fashion.     It is not that drainage and the risk of
    
    flooding are not legitimate zoning concerns.     Mauro’s plan,
    
    however, is not a development proposal that would add many more
    
    units to an existing space.     The property is zoned for single-
    
    family residential use and conforms in all respects to the
    
    zoning standards for the zone but for the required frontage on a
    
    public street.   Except for that deficiency, Mauro could apply
    
    for a building permit.     It would then be incumbent on the
    
    municipal building official to determine if the plans submitted
    
    by the property owner conform with building standards in the
    
    town, including access to water, sewer, stormwater drainage,
    
    electric, and gas.     It is in that context the municipal building
    
    official could address whether the soil would support the
    
    proposed foundation and the impact on surrounding properties of
    
    the fill authorized by the general permit that the NJDEP issued.
    
    It is in that context the municipal building official also may
    
    determine whether the proposed plans conform to other municipal
    
    building standards, such as any elevation standards adopted by
    
    the municipal governing body for new or substantially damaged
    
    
                                      29
    residences in the town.   Recognizing the authority of the
    
    municipal building official, the Board could have conditioned
    
    the variance on the issuance of a building permit.     See N.J.S.A.
    
    40:55D-18.   In no event, however, does the record support the
    
    ultimate conclusion that the applicant failed to establish the
    
    positive or negative criteria for a (c)(1) or (c)(2) variance.
    
                                   VII.
    
        Finally, we address whether dismissal of the complaint in
    
    lieu of prerogative writs should have been without prejudice.
    
    After finding that the applicant established the positive
    
    criteria for the variance, the trial court concluded that the
    
    applicant did not satisfy the negative criteria, primarily
    
    citing the inadequacy of the evidence adduced by the applicant
    
    concerning drainage on the property.     The trial court, however,
    
    affirmed that denial without prejudice, thereby permitting the
    
    applicant to return to the Board with the same application on
    
    the same or additional evidence.     We discern from the record
    
    that the trial judge regretted the terms of the original remand
    
    order that restricted all parties from supplementing the record
    
    before the new vote and preventing all parties from addressing
    
    the issue of drainage in greater detail.    In doing so, however,
    
    the trial judge side-stepped the salutary rule that bars
    
    resubmission of the same proposal following a dispositive ruling
    
    by the Board.
    
    
                                    30
        The principle of res judicata has evolved principally in
    
    the judicial system to prevent the same claims involving the
    
    same parties from being filed and brought before a court
    
    repeatedly.   Velasquez v. Franz, 
    123 N.J. 498
    , 505 (1991).       It
    
    is a salutary rule that respects the finality of the initial
    
    decision, limits the burden of litigation on adverse parties,
    
    and removes unnecessary litigation from the courts.     City of
    
    Hackensack v. Winner, 
    82 N.J. 1
    , 32 (1980).    “[A]n adjudicative
    
    decision of an administrative agency ‘should be accorded the
    
    same finality.’”   Bressman v. Gash, 
    131 N.J. 517
    , 526 (1993)
    
    (quoting Restatement (Second) of Judgments § 83 cmt. b (1982));
    
    see also Russell v. Bd. of Adjustment of Tenafly, 
    31 N.J. 58
    , 65
    
    (1959).
    
        If 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.   It is for the Board to make that
    
    determination in the first instance.     Bressman, supra, 131 N.J.
    
    at 527; Russell, supra, 31 N.J. at 67.    By permitting the
    
    applicant to return to the Board with the same application, the
    
    
                                    31
    trial judge ignored the salutary purposes of the principle of
    
    res judicata, usurped the role of the Board to determine if it
    
    should hear the same application involving the same parties once
    
    again, and deprived all parties of the benefits of a final
    
    decision.   In this case, it was incumbent on the judge to
    
    affirm, reverse, or modify the decision of the Board, not to
    
    prolong an already protracted proceeding.
    
                                   VIII.
    
        The judgment of the Appellate Division is affirmed as
    
    modified.
    
    
    
         CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, HOENS, and
    PATTERSON; and JUDGE RODRÍGUEZ (temporarily assigned) join in
    JUDGE CUFF’s opinion.
    
    
    
    
                                    32
                      SUPREME COURT OF NEW JERSEY
    
    NO.       A-52                                  SEPTEMBER TERM 2011
    
    ON CERTIFICATION TO               Appellate Division, Superior Court
    
    
    TEN STARY DOM PARTNERSHIP,
    
          Plaintiff-Appellant,
    
                     v.
    
    T. BRENT MAURO and
    THE BOROUGH OF BAY HEAD
    PLANNING BOARD,
    
          Defendants-Respondents.
    
    
    
    DECIDED               August 5, 2013
                      Chief Justice Rabner                        PRESIDING
    OPINION BY            Judge Cuff (temporarily assigned)
    CONCURRING/DISSENTING OPINIONS BY
    DISSENTING OPINION BY
    
    
                                           AFFIRMED AS
    CHECKLIST
                                            MODIFIED
    CHIEF JUSTICE RABNER                        X
    JUSTICE LaVECCHIA                           X
    JUSTICE ALBIN                               X
    JUSTICE HOENS                               X
    JUSTICE PATTERSON                           X
    JUDGE RODRÍGUEZ (t/a)                       X
    JUDGE CUFF (t/a)                            X
    TOTALS                                      7