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)
A-2134-14T1/A-4630-14T1
| N.J. Super. Ct. App. Div. | Jun 14, 2017Background
- Stop & Shop opposed Inserra's site-plan application for a ShopRite on a county road and litigated before the Bergen County Planning Board and Board of Chosen Freeholders; the Board approved the site plan and its approval was later affirmed by the Law Division.
- Stop & Shop submitted OPRA requests in 2011 and again in 2014 seeking documents related to Inserra's application; the County produced responsive documents before Stop & Shop filed its 2014 OPRA declaratory-judgment action.
- The produced records included traffic-engineer reports and emails about signalization and corridor improvements relevant to the site-plan review; the Board of Freeholders expressly considered those documents when it approved the application.
- Two days after the Board considered the documents, Stop & Shop filed a declaratory-judgment complaint alleging OPRA and common-law access violations and seeking attorney's fees; defendants moved to dismiss under Rule 4:6-2(e).
- The Law Division dismissed the OPRA suit as moot (and also found other defects it did not need to reach); Stop & Shop appealed, and the Appellate Division consolidated this appeal with the site-plan appeal and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of OPRA action | Suit not moot because declaratory relief and fees still sought | Suit moot because requested records were produced before suit filed | Court: Action moot—records were produced before suit, so no live controversy |
| Entitlement to attorney's fees under OPRA | Fees available even if records produced; seeks fees despite prior production | Fees unavailable because Stop & Shop was not a prevailing party and suit did not cause production | Court: No fees—must be prevailing party; production before suit precludes catalyst-based fees |
| Declaratory relief under DJA for OPRA violation | Declaratory judgment appropriate to declare earlier violation and aid related administrative appeal | DJA cannot be used to decide a moot OPRA claim; declaratory relief requires a live controversy | Court: DJA relief denied—no actual controversy remains; mootness bars declaratory judgment |
| Relevance to administrative appeal | A declaration that records should have been produced earlier would affect fairness/due process of administrative proceedings | Issue unnecessary because Board considered the records and appellate review proceeded with them | Court: Not persuasive—Board considered documents; appellate review considered them; moot in that context |
Key Cases Cited
- Mason v. City of Hoboken, 196 N.J. 51 (N.J. 2008) (OPRA fee entitlement requires prevailing-party or catalyst showing; courts should avoid incenting fee-driven lawsuits)
- Walsh v. U.S. Dep't of Veterans Affairs, 400 F.3d 535 (7th Cir. 2005) (FOIA claim becomes moot once agency produces all requested documents)
- Redd v. Bowman, 223 N.J. 87 (N.J. 2015) (a decision is moot when it cannot have any practical effect on the controversy)
- JUA Funding Corp. v. CNA Ins./Cont'l Cas. Co., 322 N.J. Super. 282 (App. Div. 1999) (no declaratory relief where right to relief is moot)
- Cornucopia Inst. v. U.S. Dep't of Agric., 560 F.3d 673 (7th Cir. 2009) (rejecting declaratory-judgment claims under FOIA after documents produced)