In Mullen v. The Ippolito Corporation, a recent published decision rendered by the Appellate Division of the New Jersey Superior Court, the owners of a single-family home adjacent to a pre-existing nonconforming motel were allowed to move forward with their action in lieu of a prerogative writ that sought mandamus relief against the Borough of Point Pleasant Beach and its zoning, construction, and dune protection officials. Mandamus is a type of judicial relief, often sought in land use cases, by which a court commands a government officer to perform his or her mandatory duties in the proper manner. The relief may include commanding a government officer or entity to act pursuant to a statutory duty, or to refrain from acting, as the case may require.
Plaintiffs John Mullen and Howard Levine own a single-family house next to the Driftwood Motel located in an area that is zoned for low density residential use. The plaintiffs alleged that, over the past thirteen years, they complained to numerous municipal officials in the Borough that the owners of the Driftwood Motel were expanding its business operations and physical footprint in violation of various municipal ordinances, including the Borough’s dune protection ordinance. According to the plaintiffs, the Borough officials ignored their complaints and failed to take any corrective or enforcement action against the owners of the Driftwood Motel. As a result, the plaintiffs filed a complaint seeking, among other things, mandamus relief against the Borough and pertinent municipal officials.
The Trial Court granted summary judgment in favor of the municipal defendants based on the plaintiffs' failure to exhaust their administrative remedies as required by R. 4:69-5. The Trial Court found that the “Plaintiffs were required to appeal the enforcement officers’ decisions, namely, that they disagreed with Plaintiffs’ interpretation of the applicable Ordinance before seeking mandamus from this Court.” The Trial Court also found that the action was filed late, pursuant to R. 4:69-6 and rejected Plaintiffs’ argument that strict adherence to the time requirements under the Court Rules would be against the interest of justice.
In the case of Garrou v. Teaneck Tryon Co., 11 N.J. 294 (1953), the New Jersey Supreme Court outlined the core prerequisites that must be established by parties seeking mandamus relief in the land use context as follows: (1) the party seeking relief shows there has been a clear violation of a municipal ordinance that has especially affected him or her; (2) appropriate municipal action was not taken despite the matter having been duly and sufficiently brought to the attention of the supervising official charged with the public duty of enforcing the ordinance; and (3) the party seeking judicial relief shows the unavailability of an adequate, realistic alternative for of relief.
In the present Mullen matter, the Appellate Division held that the Court Rules governing actions in lieu of prerogative writs do not overrule the principles set out in Garrou. In so holding, the Court found that “[t]he Court’s holding in Garrou was grounded on a profound appreciation of a citizen’s right to seek the enforcement of laws, when violations of these laws have gone unaddressed by those responsible for their enforcement over an extended period time.” Therefore, as long as a litigant can satisfy the factors outlined in Garrou, a mandamus action can move forward.
The Appellate Division also found that the interests of justice warranted relaxation of the time restrictions governing actions in lieu of prerogative writs pursuant to R. 4:69-6(c) by holding that “the facts raised in this case concerned both the vindication of Plaintiffs’ private property rights and the important public interest in ensuring that public officials perform their official duties diligently and with reasonable dispatch.” The Court specifically cited to the plaintiffs’ allegations concerning the dune protection ordinance and stated that “the citizens of Point Pleasant Beach are entitled to know if their public officials are doing all that is legally required to protect this vital pubic resource.”
We can expect the principles of this new and precedential opinion to impact other land use matters in New Jersey, particularly where mandamus relief is sought. The land use attorneys at Lieberman & Blecher will be monitoring how land use boards and the Courts respond to Mullen and the issues to which the case relates.