Mullen v. The Ippolito Corporation, 428 N.J. Super. 85 (App. Div. 2012). An action in lieu of prerogative writs can be used where, at common law, one of the designated prerogative writs would have been the proper basis for suit. The action in lieu of prerogative writs was developed so that parties would not be put out of court for citing the wrong writ. But the underlying writs still have vitality. This land use decision, written by Judge Fuentes, contains an extensive discussion of the writ of mandamus, under which a court can “command the performance of a public duty which ought to be performed.”
Reversing a summary judgment that was entered by the Law Division, the appellate panel found that plaintiffs had properly presented grounds for mandamus relief against the defendant Borough of Point Pleasant Beach and certain municipal officials. Those officials allegedly disregarded plaintiffs’ repeated complaints that a neighboring property owner was ignoring applicable zoning restrictions, construction codes, and dune protection ordinances, to the detriment of plaintiffs and their property. The facts are very involved, but the discussion of the remedy of mandamus is well worth reading. There are not many cases that discuss the prerogative writ of mandamus, but it can be a powerful remedy in an appropriate case. In summary, mandamus is available, Judge Fuentes stated, where there is a clear violation of a zoning ordinance that has especially affected the plaintiff, the agency or agency personnel have failed to respond to that violation despite having been notified of that violation, and there are no other adequate and realistic forms of relief available.
In reaching its decision, the panel rejected defendants’ arguments about exhaustion of administrative remedies and the 45-day statute of limitations under Rule 4:69-6. Since this case arose from municipal inaction, rather than any affirmative of the local government, there was no “realistic alternative form of administrative relief” to exhaust, and a prerogative writ suit in lieu of mandamus was proper. As to the statute of limitations, Rule 4:69-6(c) authorizes extension of the statute “in the interest of justice.” Judge Fuentes found that “the important public interest in ensuring that public officials perform their official duties diligently and with reasonable dispatch,” especially in connection with sand dunes, a “vital public resource,” justified relaxation of the statute of limitations here.