Search Site
Menu

NJ Appellate Court Sets New Precedent in Land Use Case, Allowing Beach Property Owners’ Case to Proceed

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 & Sinkevich will be monitoring how land use boards and the Courts respond to Mullen and the issues to which the case relates.

Leave a Reply

Your email address will not be published. Required fields are marked *

Our Attorneys

Recent Twitter Posts

  • New Jersey sets emergency water standards for new chemicals. https://t.co/trgaaLL1mD
    5 months ago
  • How will New Jersey manage stormwater as the climate changes and flooding increases? https://t.co/dhVLALyzZ2
    5 months ago
  • Unprecedented storms are slamming NJ – learn how to be the best advocate for your clients when the next flood hits.… https://t.co/TicH6iAjP0
    5 months ago
  • Trenton Water Works has removed 25 percent of lead pipes throughout its service area. https://t.co/KUvhMsJlvU
    5 months ago

Recent Blog Posts

Supreme Court concludes that attorney review period is not a requirement of absolute auction contracts

On June 9, 2022, the New Jersey Supreme Court unanimously decided that attorney review period is not a required contractual provision for a residential real estate sale by absolute auction.
Read More
Supreme Court concludes that attorney review period is not a requirement of absolute auction contracts

It Depends on the Language – The Non-Disparagement Clause

How enforceable is a non-disparagement clause in an agreement? As is always the case with any contract or agreement, it depends on the language. On May 31, 2022, the Appellate Division
Read More
It Depends on the Language – The Non-Disparagement Clause

DCA Tries Again to Use RSIS to Limit Municipal Stormwater Controls

By Michele Donato, Esq. and Stuart Lieberman, Esq. In the 1990’s, developers claimed that municipal residential development ordinances lacked uniformity, increased development costs, and caused uncertainty in the development process. In
Read More
DCA Tries Again to Use RSIS to Limit Municipal Stormwater Controls

Previous Property Manager Charged with Embezzling and Laundering Stolen Funds from Hamilton Park CO-OP.

Nicolas DePaola of Ewing New Jersey was indicted on twelve charges for embezzling and laundering stolen money from his prior client, Hamilton Park CO-OP. On April 1, 2022, a Mercer
Read More
Previous Property Manager Charged with Embezzling and Laundering Stolen Funds from Hamilton Park CO-OP.

In The Media

  • Gulf Coast Town Center facing foreclosure

    Naples Daily News, September 16, 2015

    Wells Fargo filed a lawsuit Sept. 8 against an affiliate of CBL & Associates, the owners of the decadeold, 1.2 million-square-foot mall in south Fort Myers for a $190.9 million unpaid loan. The center has 94 stores on 204 acres, with such anchors as Super Target, Belk, Best Buy, Dick’s Sporting Goods, Marshalls and Costco...

    Read More
  • Town liable for private company's leaking underground tanks, court rules

    NJ.com Jul 26, 2017

    CRANFORD -- A couple that owned a businesses in town and became sick from leaking underground tanks owned by an adjacent business can sue the township for damages because the tanks were partially ...

    Read More
  • Dark Waters: How a Class Action Catapulted NJ to Forefront of 'Forever Chemicals' Battle

    NJ Law Journal Jan 09, 2020

    As property owners become increasingly aware of PFAS contamination, and as individuals exposed to PFAS learn of the health risks associated with exposure, liability will likely affect entire supply chains.

    Read More
  1. 1
  2. 2
  3. 3
  4. 4
  5. 5
Contact Our Firm

Quick Contact Form