Chapter 11 ACTIONS IN LIEU OF PREROGATIVE WRITSbookstore.lexis.com/bstore/sample//bender/1422405605.pdf · Chapter 11 ACTIONS IN LIEU OF PREROGATIVE WRITS Synopsis ... § 11.07 Determining

Chapter 11

ACTIONS IN LIEU OFPREROGATIVE WRITS

Synopsis

PART I: STRATEGY§ 11.01 Scope§ 11.02 Objective and Strategy

PART II: DETERMINING WHETHER ACTION IN LIEU OFPREROGATIVE WRITS MAY BE BROUGHT

§ 11.03 CHECKLIST: Determining Whether Action in Lieu ofPrerogative Writs May Be Brought

§ 11.04 Understanding Nature and Purpose of Action in Lieu ofPrerogative Writs

[1] Understanding that Availability of Action in Lieu ofPrerogative Writs Is Limited to that of TraditionalPrerogative Writs

[2] Maintaining Action in Lieu of Prerogative Writs as ofRight

§ 11.05 Determining Whether Review of Official Action CouldHave Been Sought by Applying for Writ of Certiorari

[1] Determining Whether Review of Agency or MunicipalAction is Sought

[2] Determining Whether Adequate Remedy at LawExists

[3] Considering that Certiorari Review of Actions byJudicially-Created Agencies Is Unavailable

§ 11.06 Determining Whether Writ of Mandamus Was Available toCompel Official Action Sought

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[1] Determining Whether Compelling Official Action IsRemedy Sought

[2] Considering that Mandamus Can Only Be Used AfterActual Default

§ 11.07 Determining Whether Writ of Quo Warranto orProhibition Could Have Been Sought

[1] Considering Whether Writ of Quo Warranto CouldHave Been Used to Challenge Right to Hold PublicOffice

[2] Considering Whether Traditional Writ of ProhibitionCould Have Been Sought

§ 11.08 Considering Whether Matter Must Be Appealed toAppellate Division Because It Concerns State AgencyAction

[1] Determining Whether Matter Concerns State AgencyAction

[2] Bringing Action in Lieu of Prerogative Writs WhereState Agency’s Authority Is Confined to SingleLocality

[3] Bringing Action in Lieu of Prerogative Writs WhereNo Record Is Available for Appellate Review

§ 11.09 Determining Whether Challenge to Agency Action Must BeBrought in Tax Court

§ 11.10 Determining Whether Exhaustion of Right of ReviewBefore Administrative Agency Is Required

[1] Understanding Purpose of Exhaustion Requirement[2] Determining Whether Administrative Review

Unnecessary Because of Lack of FormalAdministrative Review Process

[3] Considering Whether Administrative Agency HasJurisdiction

[4] Considering Whether Exhaustion Requirement MayBe Waived

[5] Determining Whether Exhaustion Is Not RequiredBecause Issue Is Purely Question of Law

[6] Determining Whether Exhaustion of AdministrativeRemedies Is Unnecessary Because Enactment Is

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Challenged as Facially Unconstitutional[7] Determining Whether Administrative Remedy Would

Be Futile§ 11.11 Determining Whether Client Has Standing to Maintain

Action in Lieu of Prerogative Writs[1] Determining Whether Individual Client Has Standing

to Maintain Action[2] Determining Whether Client Has Standing as Citizen

and Taxpayer[3] Determining Whether Party Has Standing to

Challenge Regulation[4] Determining Whether Association Has Standing to

Bring Action[5] Determining Whether Local Governing Body Has

Standing to Bring Action

PART III: DETERMINING PERIOD IN WHICH ACTION INLIEU OF PREROGATIVE WRITS MUST BEBROUGHT

§ 11.12 CHECKLIST: Determining Period in Which Action inLieu of Prerogative Writs Must Be Brought

§ 11.13 Determining Whether Rule 4:69-6 Time Limits Apply toActions in Lieu of Prerogative Writs

[1] Commence Action Within 45 Days of Accrual of Rightto Review, Hearing or Relief

[2] Do Not Apply Time Limit to Other Causes of Action§ 11.14 Determining Whether Different Limitation Period Applies

to Action in Lieu of Prerogative Writs[1] Bringing Action Contesting Approval of School Bond[2] Bringing Action to Review Assessment or Award for

Municipal Improvement[3] Challenging Planning Board Determinations[4] Challenging Ordinance or Resolution for Public

Improvement[5] Bringing Action in Relation to Joint Sewers or

Disposal Plants[6] Bringing Action Concerning Permit to Erect Building

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in Bed of Highway[7] Bringing Action Under In Rem Tax Foreclosure Act[8] Bringing Action to Review Tax Sale of Land[9] Bringing Action to Contest Tax Sale Certificate

[10] Bringing Action to Review Ordinance AuthorizingNotes or Bonds

§ 11.15 Using Prerogative Writ to Void Action Taken atNonconforming Public Meeting

§ 11.16 Enlarging Time Limit to Bring Action in Lieu ofPrerogative Writs

PART IV: BRINGING AN ACTION IN LIEU OF PREROGATIVEWRITS

§ 11.17 CHECKLIST: Bringing an Action in Lieu of PrerogativeWrits

§ 11.18 Applying for Stay or Other Temporary Relief whenBringing Action in Lieu of Prerogative Writs

[1] Applying for Preliminary Injunction to StayEnforcement of Ordinance

[2] Showing Entitlement to Preliminary Injunction[3] Obtaining Temporary Injunction Without Notice and

Hearing§ 11.19 Complying with Requirements for Drafting, Filing, and

Serving Complaint in Action in Lieu of Prerogative Writs[1] Drafting Complaint[2] Filing Complaint[3] Serving Complaint

§ 11.20 Preparing for Preliminary Case Conference in Action inLieu of Prerogative Writs

§ 11.21 Determining Whether to Move for Summary Judgment inAction in Lieu of Prerogative Writs

[1] Moving for Summary Judgment When Agency RecordIs Available for Judicial Review

[2] Moving for Summary Judgment to CompelPerformance of Ministerial Act

[3] Moving for Summary Judgment in Action ChallengingMunicipal Ordinance

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§ 11.22 Moving for Summary Judgment in Action in Lieu ofPrerogative Writs

[1] Preparing Summary Judgment Motion[2] Filing Summary Judgment Motion

PART V: APPEALING INTERLOCUTORY ORDER OFAGENCY OR OFFICER

§ 11.23 CHECKLIST: Appealing Interlocutory Order of Agency orOfficer

§ 11.24 Determining Whether Interests of Justice MeritInterlocutory Appeal

§ 11.25 Applying for Leave to Appeal Interlocutory Order

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PART I: STRATEGY

§ 11.01 Scope

This chapter addresses the following:

• Understanding prerogative writs.

• The requirements for bringing an action in lieu of prerogative writs.

• The limitation periods for various actions.

• Practices and procedures for bringing an action in lieu of preroga-tive writs.

• Practices and procedures for obtaining interlocutory relief.

§ 11.02 Objective and Strategy

The purpose of this chapter is to provide the practitioner with a basicunderstanding of the concept of prerogative writs and the requirements forbringing an action in lieu of such writs. This procedure is important forthose seeking to challenge the actions of local governments or officials.Unlike other areas of the law, the failure here to comply with the technicalrequirements of the Court Rules can prove fatal, especially with respect tothe various limitations periods. Therefore, an understanding of theseprocedural requirements is critical.

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PART II: DETERMINING WHETHER ACTION IN LIEU OFPREROGATIVE WRITS MAY BE BROUGHT

§ 11.03 CHECKLIST: Determining Whether Action in Lieu ofPrerogative Writs May Be Brought

□ Determine whether review, hearing, and relief would have beenavailable under traditional prerogative writ.

� Determine whether action challenges action or inaction of localgovernment agency, government official, or municipality.

� Determine whether prerogative writ could not have been usedbecause adequate remedy at law is available.

Authority: N.J. Ct. R. 4:69-1; O’Neill v. Washington, 193 N.J.Super. 481, 475 A.2d 55 (App. Div. 1984)

Discussion: See § 11.04 below.

□ Determine whether action could have been challenged by petition-ing court for prerogative writ of certiorari.

� Determine whether action seeks review of illegal action ofmunicipality or administrative agency, including municipalordinances, agency regulations or agency determinations.

Authority: Ward v. Keenan, 3 N.J. 298, 70 A.2d 77 (1949).


□ Determine whether writ of mandamus could have issued becauseaction seeks to compel lower court or government entity to performa mandatory or ministerial duty.

� Consider that writ of mandamus was used to compel govern-ment agency or official to perform duty, but could not dictatemanner in which duty was performed.

� Determine whether mandamus would have been availablebecause duty is ministerial duty that does not require exerciseof discretion.

� Determine whether mandamus would have been available tocompel official or agency to exercise its discretion.

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� Consider that writ of mandamus could be used only if officialor agency failed to perform duty, and not in anticipation of suchfailure.

Authority: Switz v. Middletown Tp., 23 N.J. 580, 130 A.2d 15(1957).


□ Determine whether relief could have been obtained through writ ofquo warranto or prohibition.

� Determine whether action is brought to challenge individual’sright to hold public office.

Authority: N.J. Ct. R. 4:69-1; New Jersey State Lodge-Fraternal Order of Police v. Aaron, 39 N.J. Super. 423, 121A.2d 402, (App. Div. 1956).


□ Determine whether matter must be appealed to Appellate Divisionbecause it concerns state agency action.

� Consider that exclusive method for reviewing action or inac-tion of state agency or official is by appeal to Superior Court,Appellate Division.

� Determine whether exception to rule requiring appeal of stateaction to Appellate Division applies because authority ofagency in question is confined to single locality.

� Determine whether exception to rule requiring appeal of stateaction to Appellate Division applies because plenary hearing isnecessary to develop record and there was no adversarialproceeding before state agency.

Authority: N.J. Ct. R. 4:69-1, 2:2-3; Selobyt v. Keough-DwyerCorrectional Facility, 375 N.J. Super. 91, 866 A.2d 101 (App.Div. 2005), Montclair v. Hughey, 222 N.J. Super. 441, 537 A.2d692 (App. Div. 1987).


□ Determine whether challenge to agency action must be brought in



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Tax Court because review of final decision with respect to taxmatter is sought.

� Determine whether matter must be brought in Tax Courtbecause it involves review of final decision of municipality orcounty tax board regarding tax matter.

� Consider that enforcement of county tax board decision, inabsence of appeal, may be sought by action in lieu ofprerogative writ.

Authority: N.J. Ct. R. 4:69-1, 8:2-1 et seq. Hernandez v. W.N.Y., 18 N.J. Tax Ct. 438 (1999).


□ Determine whether right of review before administrative agencyhas been exhausted.

� Determine whether it is unnecessary to seek administrativereview because there is no formal administrative reviewprocess

Authority: N. J. Ct. R. 4:69-5; Ward v. Keenan, 3 N.J. 298, 70A.2d 77 (1949).


□ Consider whether exhaustion requirement may be waived, becauseone of following is true:

� Issue to be decided is purely a question of law.

� Public interest would be best served by prompt decision.

� Irreparable harm would result from denial of immediate judi-cial action.

� Exhaustion of administrative remedies would be futile.

� Ordinance or regulation is challenged as facially unconstitu-tional.

Authority: N. J. Ct. R. 4:69-5; Ward v. Keenan, 3 N.J. 298,308, 70 A.2d 77 (1949).




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□ Determine whether client has standing to bring action in lieu ofprerogative writs.

� Determine whether there is substantial likelihood that client’sinterests will be adversely affected by decision being chal-lenged.

� Determine whether client is citizen taxpayer of locality.

� Understand that citizens have broad right to challenge locallegislative and judicial action, without need to show uniquepersonal detriment.

� If client is governing body, determine whether there is substan-tial likelihood that client will suffer injury, independent ofinjury to citizens, in event of adverse decision.

� If client is association, determine whether there is substantiallikelihood that members of association will suffer harm inevent of adverse decision.

Authority: In re Camden County, 170 N.J. 439, 790 A.2d 158(2002); N.J. Builders Ass’n v. Bernards Twp., 108 N.J. 223(1987).


§ 11.04 Understanding Nature and Purpose of Action in Lieu ofPrerogative Writs

[1] Understanding that Availability of Action in Lieu ofPrerogative Writs Is Limited to that of Traditional PrerogativeWrits

Prerogative writ actions are the traditional means used by citizens tochallenge local government and agency decisions or actions. Alexander’sDep’t Stores, Inc. v. Paramus, 125 N.J. 100, 592 A.2d 1168 (1991)(reviewing use of traditional prerogative writs). In New Jersey, thetraditional prerogative writs of certiorari, mandamus, quo warranto, andprohibition are consolidated into a single action, known as an “action inlieu of prerogative writs.” N.J. Const. Article VI, § 5, ¶ 4. An action in lieuof prerogative writs may be brought if “review, hearing, and relief” waspreviously available by prerogative writ. N.J. Ct. R. 4:69-1.

An action in lieu of prerogative writs is a substitute form of action that

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adheres to the basic principles of the traditional writ it replaces. Althoughthe procedure for bringing an action in lieu of prerogative writs differs fromthe procedures for bringing the various prerogative writs, the substantivelaw governing the prerogative writs is still applicable. Brunetti v. Boroughof New Milford, 68 N.J. 576, 350 A.2d 1 (1975) (exceptions to exhaustionrequirement under decisional law pertaining to prerogative writs also applyto in-lieu proceedings). Accordingly, an action in lieu of prerogative writsmay be brought only if review, hearing, or relief would have been availableunder one of the traditional prerogative writs. In re LiVolsi, 85 N.J. 576,428 A.2d 1268 (1981) (action in lieu of prerogative writ could not bebrought to challenge decision of judicially-created fee arbitration commit-tee, because prerogative writ of certiorari could only be used to challengeactions of administrative agencies). Therefore, it is important to understandthese writs to determine whether an action in lieu of prerogative writs maybe brought.

Although an action in lieu of prerogative writs cannot be brought unlessrelief would have been available under a traditional prerogative writ, it isunnecessary to identify the traditional prerogative writ that corresponds tothe action being brought. Ward v. Keenan, 3 N.J. 298, 304, 70 A.2d 77(1949) (explaining that action in lieu of prerogative writs is intended toeliminate confusion about which writ would be appropriate).

[2] Maintaining Action in Lieu of Prerogative Writs as of Right

An action in lieu of prerogative writs may be maintained as of right. Bycontrast, in the past, courts had discretion to deny an application for aprerogative writ, such as a writ of mandamus, and often did so withoutexplanation. Ward v. Keenan, 3 N.J. 298, 70 A.2d 77 (1949) (providingdetailed discussion of actions in lieu of prerogative writs).

z Strategic Point: The rules governing action in lieu of prerogativewrits do not reference or alter any basis for a claim of a constitutionalright to a jury trial that might otherwise be asserted in certainprerogative writ actions. N.J. Ct. R. 4:69-1 et seq. See also O’Neill v.State Highway Department, 40 N.J. 326, 191 A.2d 481 (1963).

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§ 11.05 Determining Whether Review of Official Action Could HaveBeen Sought by Applying for Writ of Certiorari

[1] Determining Whether Review of Agency or Municipal Actionis Sought

The prerogative writ of certiorari provided the means of seeking redressfor illegal government actions that invaded a citizen’s rights. Certiorari wasused to review quasi-judicial, quasi-legislative, and administrative actionsof all kinds. Ward v. Keenan, 3 N.J. 298, 70 A.2d 77 (1949) (providinghistory of prerogative writ actions in New Jersey). Thus, certiorari wasused to review the actions of inferior tribunals, such as administrativeagencies. Wyzykowski v. Rizas, 132 N.J. 509, 626 A.2d 406 (1993) (courthad jurisdiction to determine whether planning board had conflict ofinterest in granting approvals of development application submitted bymayor in private capacity). Certiorari was also commonly used to reviewmunicipal ordinances. Hills Development Co. v. Bernards Township, 103N.J. 1, 510 A.2d 621 (1986) (review of provisions of Fair Housing Act didnot impermissibly interfere with court’s right to review municipal housingordinances).

The prerogative writ of certiorari was predominantly an appellate formof relief, and was used to review errors of law apparent on the face of therecord made by a quasi-judicial tribunal. Baldwin Constr. Co. v. EssexCounty Bd. of Taxation, 16 N.J. 329, 345, 108 A.2d 598 (1954) (distin-guishing between certiorari and mandamus). However, under currentpractice, the court has discretion to permit additional discovery andconsider extrinsic evidence in an action in lieu of the prerogative writ ofcertiorari. Romanowski v. Brick, 185 N.J. Super. 197, 447 A.2d 1352 (LawDiv. 1982) (granting de novo review to suspended police officers, whowould have been entitled to new hearing but for fortuitous circumstancesof their sentences).

[2] Determining Whether Adequate Remedy at Law Exists

Certiorari was not available if there was another, adequate remedy, suchas monetary damages. Accordingly, an action in lieu of the prerogative writof certiorari may not be maintained if there is an adequate remedy at law.O’Neill v. Washington, 193 N.J. Super. 481, 475 A.2d 55 (App. Div. 1984)(action in lieu of prerogative writ improper in suit to recover taxoverpayments because money judgment was adequate remedy).



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[3] Considering that Certiorari Review of Actions by Judicially-Created Agencies Is Unavailable

Because there was no certiorari review of actions by judicially-createdagencies, an action in lieu of prerogative writs cannot be used to seekreview of the actions of a judicially-created agency. In re LiVolsi, 85 N.J.576, 428 A.2d 1268 (1981) (action in lieu of prerogative writ could not bebrought to challenge decision of judicially-created fee arbitration commit-tee because prerogative writ of certiorari could only be used to challengeactions of administrative agencies).

§ 11.06 Determining Whether Writ of Mandamus Was Available toCompel Official Action Sought

[1] Determining Whether Compelling Official Action Is RemedySought

The prerogative writ of mandamus is used to remedy official inaction.Joseph v. Passaic Hospital, 26 N.J. 557, 141 A.2d 18 (1958) (discussinguse of writ of mandamus). The writ of mandamus is used to compel agovernment official or entity to perform a required ministerial duty. A dutyis ministerial if it is absolutely required and involves no more than theexecution of a set task, and the manner in which the task is to be performedis prescribed by law. A duty is not ministerial when there is room for theexercise of discretion. In re Failure by the Dep’t of Banking & Ins., 336N.J. Super. 253, 764 A.2d 494, (App. Div. 2001) (when legislation requiredagency to revise dental fee schedule biannually but did not imposedeadline, agency had discretion as to timing of act and court would notimpose deadline).

Mandamus is also available to compel an agency to exercise itsdiscretion, if it has failed to perform a mandatory duty that requires theexercise of discretion. In such cases, the court must order the governmententity to perform its duty, without dictating how it should exercise itsdiscretion. Switz v. Middletown Tp., 23 N.J. 580, 130 A.2d 15 (1957)(mandating towns to assess property at full value, as required by statute);Aparin v. County of Gloucester, 345 N.J. Super. 41, 783 A.2d 260 (LawDiv. 2000) (mandating county to provide police training to county rangers,as specified in civil service job description).

Accordingly, an action in lieu of prerogative writs may be brought tocompel a government entity to perform a specific ministerial act or to



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compel the performance of a discretionary function. However, an action inlieu of prerogative writs cannot be used to compel an agency to exercise itsdiscretion in a specific manner, because the prerogative writ of mandamuscould not have been used in that manner.Loigman v. Middletown Tp., 297N.J. Super. 287, 687 A.2d 1091 (App. Div. 1997)(taxpayer could not bringaction to enforce public sector labor agreement).

Mandamus may not be used if an ordinary action would provide anequally adequate and complete remedy. However, the other remedy mustbe both realistically adequate, and available. Garrou v. Teaneck Tryon Co.,11 N.J. 294, 94 A.2d 332 (1953) (indictment of public officials for failingto enforce zoning ordinance would not provide adequate remedy toaggrieved neighbor). In addition, a remedy in mandamus is inappropriate ifits effect would be to harm the public, to cause confusion and disorder, orto injure the rights of third parties. Switz v. Middletown Tp., 23 N.J. 580,130 A.2d 15 (1957) (mandating towns to assess property at full value, asrequired by statute, but delaying effect of mandate for two years, to avoiddetriment to community).

[2] Considering that Mandamus Can Only Be Used After ActualDefault

The traditional writ of mandamus cannot be used in anticipation ofofficial inaction, but only to remedy such inaction once it has occurred. Inre Resolution of State Com. of Investigation, 108 N.J. 35, 527 A.2d 851(1987) (in dicta, stating that plaintiffs could bring action in lieu ofprerogative writs to force SCI to refer evidence of unlawful disclosures toAttorney General).

§ 11.07 Determining Whether Writ of Quo Warranto or ProhibitionCould Have Been Sought

[1] Considering Whether Writ of Quo Warranto Could Have BeenUsed to Challenge Right to Hold Public Office

The prerogative writ of quo warranto was used to challenge the right ofan individual to hold a public office. New Jersey State Lodge-FraternalOrder of Police v. Aaron, 39 N.J. Super. 423, 121 A.2d 402 (App. Div.1956) (action challenging legality of appointment of police officerssounded in quo warranto).

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against a person “for usurping, intruding into or unlawfully holding orexecuting” any public office or franchise. NJS 2A:66-6. If the officeholderwas ineligible at the time he or she was appointed or elected, the propermeans of challenging his or her right to hold office is by means of an actionin lieu of prerogative writ. Pickett v. Harris, 219 N.J. Super. 253, 530 A.2d319 (App. Div. 1987) (violation of court rule prohibiting holding dual officedid not affect council member’s right to hold office).

The statutory action for challenging an individual’s right to hold officemay be brought by a person who claims a right to the office, or by anyperson who would have had standing to seek a prerogative writ of quowarranto. NJS 2A:66-6, 2A:66-8. Accordingly, an action in lieu of theprerogative writ of quo warranto, involving a municipal office or position,may be brought only by a person claiming a right to hold office or a citizenand taxpayer of the municipality. New Jersey State Lodge-Fraternal Orderof Police v. Aaron, 39 N.J. Super. 423, 121 A.2d 402 (App. Div.1956)(plaintiff corporation lacked standing to bring action in nature of quowarranto). It is not enough that the plaintiff be a taxpayer of the state; theplaintiff must actually pay taxes in the municipality involved. Demoura v.Newark, 74 N.J. Super. 49, 180 A.2d 513 (App. Div. 1962) (summaryjudgment granted against plaintiff who failed to provide legal proof that hewas city taxpayer).

[2] Considering Whether Traditional Writ of Prohibition CouldHave Been Sought

Prohibition was the traditional writ used to block proceedings when atribunal was acting “manifestly beyond its jurisdiction.” Alexander v.Crollott, 199 U.S. 580, 26 S. Ct. 161, 50 L. Ed. 317 (1905) (writ shouldissue only when there is no other remedy). The writ of prohibition wasrarely used in New Jersey, because of the availability of other remedies,such as certiorari or mandamus. Carrick v. First Crim. Court, 126 N.J.L.598, 20 A.2d 509 (Sup. Ct. 1941) (noting total absence of reported cases inwhich prohibition was granted). The writ of prohibition could only beissued against an inferior tribunal; it could not be used to restrainproceedings in the same court or in a court with equal though differentjurisdiction. Swanson v. Swanson, 8 N.J. 169, 84 A.2d 450 (1951) (writ ofprohibition not available in Superior Court against another judge ordivision of Superior Court).

Although virtually never used in New Jersey, an action in lieu of



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prerogative writs in the nature of prohibition may still, theoretically, bebrought.

§ 11.08 Considering Whether Matter Must Be Appealed toAppellate Division Because It Concerns State Agency Action

[1] Determining Whether Matter Concerns State Agency Action

An action in lieu of prerogative writ may not be brought if review isavailable under N.J. Ct. R. 2:2-3, which governs appeals to the AppellateDivision. N. J. Ct. R. 4:69-1.

Under N.J. Ct. R. 2:2-3, the exclusive method for reviewing a finalaction or inaction of a state administrative agency or officer is by directappeal to the Appellate Division. N.J. Ct. R. 2:2-3(a)(2); Prado v. State,186 N.J. 413, 895 A.2d 1154, 2006 N.J. LEXIS 496 (May 8, 2006)(Appellate Division had exclusive jurisdiction to review Attorney Gener-al’s decision to deny state official defense in discrimination action broughtby state employees, although underlying action was being heard in LawDivision). The Appellate Division also has exclusive jurisdiction to reviewthe validity of any rule promulgated by a state agency or officer. N.J. Ct. R.2:2-3(a)(2). There are two judicially-created exceptions to this rule. See §11.08[2], [3] below.

z Strategic Point: Before filing an action in lieu of prerogative writsin non-tax matters challenging an agency, counsel must determine thefollowing: (1) whether the agency is a local agency; if the agency is astate agency; whether authority is confined to a single locality; and (2)whether there is no record available. Unless one of these conditionsexist, relief must be sought in the Appellate Division. N.J. Ct. R.4:69-1.

[2] Bringing Action in Lieu of Prerogative Writs Where StateAgency’s Authority Is Confined to Single Locality

Review of an agency’s action is not available under N.J. Ct. R. 2:2-3 ifthe agency’s authority is confined to a single locality, even if the agencycan be considered a state agency for most purposes. In such cases, aproceeding in lieu of prerogative writ is the proper means of obtaining



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review. Selobyt v. Keough-Dwyer Correctional Facility, 375 N.J. Super. 91,866 A.2d 101 (App. Div. 2005) (although county correctional facility wasextensively regulated by state department of corrections, its authority wasstrictly local, and appeal of facility’s action was by action in lieu ofprerogative writ); Infinity Broadcasting Corp. v. N.J. Meadowlands Comm.,377 N.J. Super. 209, 872 A.2d 125 (App. Div. 2005) (although Meadow-lands Commission is state agency, its land use authority is exercised onlocal basis; review of commission’s land use actions must be sought byaction in lieu of prerogative writ).

[3] Bringing Action in Lieu of Prerogative Writs Where NoRecord Is Available for Appellate Review

Appellate review of administrative action is not available under N.J. Ct.R. 2:2-3 if there were no proceedings before the state agency and there isconsequently no record available for review. Pfleger v. State HighwayDep’t, 104 N.J. Super. 289, 250 A.2d 16 (App. Div. 1968) (condemnationby Department of Transportation was properly challenged by action in lieuof prerogative writs in Law Division, because there was no provision forevidentiary hearing in condemnation proceeding). In such cases, reviewrequires the exercise of such trial court functions as gathering evidence andmaking findings of facts. Accordingly, a proceeding in lieu of prerogativewrits is appropriate to review the action of a state agency if there has notbeen an adversarial proceeding at the agency level, and a hearing isnecessary to develop a record. Montclair v. Hughey, 222 N.J. Super. 441,537 A.2d 692 (App. Div. 1987) (challenge to Department of EnvironmentalProtection’s administrative order was properly brought in Law Division,because order was not preceded by hearing).

z Strategic Point: The challenging or interested party participating inthe proceedings below should seek permission to engage a certifiedshorthand reporter where the official record will be preserved byelectronic means since that party bears the burden of reconstructinggaps in the record. State v. Paduani, 307 N.J. Super. 134, 704 A.2d 582(App. Div.), certif. denied, 153 N.J. 216 (1998). Compare N.J. Ct. R.4:69-4 with N.J. Ct. R. 2:5-3(f).



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§ 11.09 Determining Whether Challenge to Agency Action Must BeBrought in Tax Court

A proceeding in lieu of prerogative writs may not be brought if the TaxCourt has jurisdiction over the matter pursuant to N.J. Ct. R. 8:2. N. J. Ct.R. 4:69-1.

The Tax Court has initial review jurisdiction of all final decisions withrespect to a tax matter, including decisions of county and municipalagencies and officials. A final decision is any “act, action, proceeding,ruling, decision, order or judgment including the promulgation of any ruleor regulation with respect to a tax matter.” N.J. Ct. R. 8:2-1 et seq. The TaxCourt has initial review jurisdiction of such local matters as realty transferfees and local property tax assessments. N.J. Ct. R. 8:2-1 et seq.

However, the Tax Court does not have jurisdiction to enforce a countytax board decision in the absence of an appeal. Therefore, an action torequire a municipality to comply with a county tax board decision isproperly brought in the Law Division by a proceeding in lieu of prerogativewrits. Hernandez v. W. N.Y., 18 N.J. Tax Ct. 438 (1999) (Tax Court did nothave jurisdiction to hear application to compel municipality to pay intereston refund).

§ 11.10 Determining Whether Exhaustion of Right of Review BeforeAdministrative Agency Is Required

[1] Understanding Purpose of Exhaustion Requirement

An action in lieu of prerogative writs ordinarily may not be brought ifthere is still a right of review before the administrative agency. N.J. Ct. R.4:49-5.

The exhaustion rule serves the following three purposes:

1. To ensure that claims will be heard, as a preliminary matter, by abody possessing expertise in the area;

2. To allow for administrative resolution of the dispute, if possible, sothat there is no need to institute suit; and

3. To create a factual record necessary for meaningful appellatereview.

Paterson Redevelopment Agency v. Schulman, 78 N.J. 378, 396 A.2d 573



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(1979) (landowners seeking relocation costs after condemnation shouldhave exhausted agency review procedures, despite possible constitutionalissue).

However, exhaustion of the right of administrative review is notnecessary when it is “manifest that the interest of justice requiresotherwise.” N.J. Ct. R. 4:69-5.

Exception: Where the exhaustion requirement will preclude an actionin lieu of prerogative writ, counsel may want to file an action fordeclaratory judgment seeking an interpretation of an ordinance sincethe exhaustion of remedy requirement is not applicable in such actions.Pullen v. South Plainfield Planning Board, 291 N.J. Super. 303, 677A.2d 278 (Law Div. 1995), aff’d, 291 N.J. Super. 1, 676 A.2d 1095(App. Div. 1996).

[2] Determining Whether Administrative Review UnnecessaryBecause of Lack of Formal Administrative Review Process

A plaintiff is not required to seek administrative review if no formalreview process exists for administrative resolution of the type of dispute atissue. Aparin v. County of Gloucester, 345 N.J. Super. 41, 783 A.2d 271(Law Div. 2000) (no formal administrative procedure available to countyrangers seeking to compel county to provide them with police training, asrequired by their civil service job specification).

[3] Considering Whether Administrative Agency Has Jurisdiction

An agency may not consider a matter that falls outside its statutoryjurisdiction, even if the matter is related to areas within the agency’sjurisdiction. Alexander’s Dep’t Stores, Inc. v. Paramus, 125 N.J. 100, 592A.2d 1168 (1991) (Council on Affordable Housing (COAH) lackedjurisdiction to consider whether municipality’s zoning ordinance satisfiedsubstantive and procedural standards unrelated to Mt. Laurelrequirements).

[4] Considering Whether Exhaustion Requirement May BeWaived

The requirement that administrative remedies must be exhausted before



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an action in lieu of prerogative writs is brought is not an absolutejurisdictional requirement. Abbott v. Burke, 100 N.J. 269, 495 A.2d 376(1985) (remanding case to agency, despite constitutional issues, whenresolution of issues was fact-sensitive and required agency expertise). Thecourt has discretion to waive the exhaustion requirement as required by theinterest of justice. Ward v. Keenan, 3 N.J. 298, 70 A.2d 77 (1949) (policeofficer who had been suspended was required to exhaust administrativeremedies). However, the interest of justice is ordinarily best served byrequiring the plaintiff to first exhaust administrative remedies; it is only inspecial circumstances that the interest of justice will require otherwise. 21stCentury Amusements, Inc. v. D’Alessandro, 257 N.J. Super. 320, 608 A.2d438, (App. Div. 1992) (when construction official declined to issuecertificate of occupancy, plaintiff was required to appeal to Board ofAdjustment).

Exhaustion of remedies is not required under the following circum-stances:

1. The issue to be decided is purely a question of law.

2. There is a need for prompt decision in the public interest.

3. Irreparable harm will result from denial of immediate judicialaction.

4. Exhaustion of administrative remedies would be futile.

Ward v. Keenan, 3 N.J. 298, 70 A.2d 77 (1949).

[5] Determining Whether Exhaustion Is Not Required BecauseIssue Is Purely Question of Law

Exhaustion of administrative remedies is not required if the issue to bedecided is purely a question of law, for which administrative expertise isunnecessary. Matawan v. Monmouth County Bd. of Taxation, 51 N.J. 291,296 - 297, 240 A.2d 8 (1968) (borough challenging application andconstitutionality of statute apportioning tax burden for school funding notrequired to exhaust administrative remedies). When an issue is purely legal,the court must make its decision de novo. and may not defer to theadministrative agency. Aparin v. County of Gloucester, 345 N.J. Super. 41,783 A.2d 271 (Law Div. 2000) (issue of whether civil service jobspecifications created enforceable legal rights was purely legal).

If the resolution of a contested legal issue properly brought before a



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court necessarily turns on factual issues within the special province of anadministrative agency, the court should refer the factual issues to thatagency. The trial court should accept the factual determinations of theagency and lay them against the legal issues to be resolved and enter itsfinal judgment resolving the mixed questions of law and fact based uponthe agency fact finding. Boss v. Rockland Electric Co., 95 N.J. 33, 468 A.2d1055 (1983) (involving challenge to right-of-way maintenance).

Exception: If counsel attacks or defends administrative action solelyon a legal basis, counsel must recognize that the court is not bound bythe record below. Cell v. Zoning Board of Adjustment, 172 N.J. 75, 796A.2d 247 (2002).

[6] Determining Whether Exhaustion of Administrative RemediesIs Unnecessary Because Enactment Is Challenged as FaciallyUnconstitutional

Judicial review, without exhaustion of administrative remedies, isappropriate when an ordinance or regulation is challenged as unconstitu-tional on its face. However, when there is an allegation that an ordinanceis unconstitutional as applied and factual findings are required, adminis-trative review is appropriate to develop a factual record. If an ordinance ischallenged both on its face and as applied, the court may determine thefacial challenge and, if the ordinance is facially valid, order the plaintiffs toexhaust their administrative remedies. Brunetti v. Borough of New Milford,68 N.J. 576, 350 A.2d 19 (1975) (court could decide facial challenge to rentcontrol ordinance but plaintiffs were required to exhaust their administra-tive remedies before court would consider challenge to ordinance asapplied).

[7] Determining Whether Administrative Remedy Would BeFutile

Administrative remedies need not be exhausted if it is apparent that itwould be futile to seek relief in an administrative proceeding. Cf. Moore v.International Assoc. of Bridge, etc.,66 N.J. 527, 334 A.2d 1 (1975)(plaintiff union member whose application to transfer had been denied wasnot required to exhaust administrative remedies within union; otherplaintiffs in action had done so unsuccessfully).



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§ 11.11 Determining Whether Client Has Standing to MaintainAction in Lieu of Prerogative Writs

[1] Determining Whether Individual Client Has Standing toMaintain Action

There is broad standing to challenge both quasi-judicial and quasi-legislative agency and municipal actions. An action in lieu of prerogativewrits may be brought by a person who was a direct party to proceedingsbefore an administrative agency, as well as by any other person whoseinterests have been affected by the action sought to be challenged. All thatis required for standing is a substantial likelihood that the plaintiff willsuffer some harm in the event of an adverse decision. As a general rule, anyperson who has suffered any financial detriment as a result of agency actionhas standing to challenge that action in court. In re Camden County, 170N.J. 439, 790 A.2d 158 (2002) (county had standing to appeal disabilitydetermination by Public Employees Retirement System, because countyhad contractual obligation to pay substantial portion of benefit costs).

If the case involves a substantial public interest, a person has standing tobring an action in lieu of prerogative writs if he or she has merely a slightprivate interest. Elizabeth Fed. Sav. & Loan Ass’n v. Howell, 24 N.J. 488,132 A.2d 779 (1957) (banks’ private interest, when coupled with publicinterest in preventing failure of banking institutions, was sufficient toconfer standing to challenge approval of merger of their competitors).

[2] Determining Whether Client Has Standing as Citizen andTaxpayer

The courts have recognized a broad right of citizens and taxpayers toseek review of local judicial or legislative action without proof of uniquefinancial detriment. Kozesnik v. Montgomery, 24 N.J. 154, 131 A.2d 1(1957). Cases in which taxpayers have standing to challenge official action,without the need of proving detriment, have included, but are not limitedto, the following:

1. Zoning matters, both quasi-judicial and legislative. Kozesnik v.Montgomery, 24 N.J. 154, 131 A.2d 1 (1957) (community-at-largehas interest in integrity of zoning plan sufficient to justify attack onvalidity of entire zoning district).

2. Cases involving misfeasance, malfeasance, or corruption of local



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officials. Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 86A.2d 201 (1952) (citizen may bring suit to enforce obligation ofpublic official to act with honesty and good faith).

3. Cases challenging the legality of bidding procedures for contractsfor public services. K. S. B. Technical Sales Corp. v. North JerseyDist. Water Supply Com., 75 N.J. 272, 381 A.2d 774 (1977)(taxpayer had standing to challenge legality of provisions in waterdistrict’s bidding specifications).

4. Cases challenging wrongful expenditures of public funds. Theurerv. Borrone, 81 N.J. Super. 188, 195 A.2d 215 (Law Div. 1963)(taxpayer had standing to bring action to prevent payment of payraises approved by referendum, when there were allegations ofvoting fraud in connection with referendum).

However, a citizen does not have an unlimited right to challenge officialaction. For example, a citizen does not have standing to enforce a contractprovision that would compel the expenditure of public funds, if the citizenis not a party to the contract. Loigman v. Middletown Tp., 297 N.J. Super287, 687 A.2d 1091 (App. Div. 1997) (taxpayer could not bring action toenforce public sector labor agreement).

[3] Determining Whether Party Has Standing to ChallengeRegulation

A party may have standing to challenge an ordinance or regulation, evenif the party failed to participate in the rulemaking process or failed toregister a timely objection. In such cases, the party has standing to bring afacial constitutional challenge or to attack the authority of the agency toenact the legislation. In re Six Month Extension of N.J.A.C. 5:91-1 et seq.,372 N.J. Super. 61, 87, 855 A.2d 582 (App. Div. 2004) (housing activistshad standing to challenge COAH’s interim certification of municipality’sMount Laurel compliance). The party may not, however, attack thelegislation based on evidence that it could have presented during therulemaking process. Cf. Bergen Pines County Hospital v. New Jersey Dep’tof Human Services, 96 N.J. 456, 476 A.2d 784 (1984) (hospital could notchallenge agency’s rules adopted according to Administrative ProcedureAct; hospital failed to raise objections or present evidence during rulemak-ing process).



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[4] Determining Whether Association Has Standing to BringAction

An association of individuals who allegedly have suffered financial harmas a result of agency action has standing to assert a claim on its members’behalf. N.J. Builders Ass’n v. Bernards Twp., 108 N.J. 223 (1987) (builders’association had standing to litigate on behalf of its members); Medical Soc.of N.J. v. Bakke, 383 N.J. Super. 498, 892 A.2d 728 (App. Div. 2006)(doctor’s association had standing to challenge decision of Commissionerof Banking and Insurance approving acquisition of health care insuranceprovider by another provider, because acquisition could have adverseimpact on doctors’ compensation).

[5] Determining Whether Local Governing Body Has Standing toBring Action

A county or local governing body does not have standing to challengethe actions of a government agency on the sole ground that it represents thepublic and is protecting public interests. However, a governing body hasstanding if there is a substantial likelihood that it will suffer financialdetriment in the event of an adverse decision. In re Camden County, 170N.J. 439, 790 A.2d 158 (2002) (county had standing to appeal disabilitydetermination by Public Employees Retirement System because countyhad contractual obligation to pay substantial portion of benefit costs).



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PART III: DETERMINING PERIOD IN WHICH ACTION INLIEU OF PREROGATIVE WRITS MUST BE BROUGHT

§ 11.12 CHECKLIST: Determining Period in Which Action in Lieuof Prerogative Writs Must Be Brought

□ Determine whether any of the following exceptions to general rulethat action must be brought within 45 days after right to review,hearing, or relief accrued is applicable.

� Action to contest election for approval of school bond.

� Action to review assessment or award for municipal improve-ment.

� Action to review determination of a planning board or board ofadjustment.

� Action to review ordinance authorizing siding or for a publicimprovement.

� Action in relation to joint sewer or disposal plant.

� Action to review decision of a board of chosen freeholdersregarding the construction of a building in a highway bed.

� Action brought under In Rem Tax Foreclosure Act.

� Action to review sale of land to enforce assessment or tax.

� Action to contest or set aside tax sale certificate.

� Action to review an improvement ordinance after award ofcontract.

� Action to review resolution or ordinance authorizing issuanceof notes or bonds by municipality or other political subdivision.

Authority: N.J. Ct. R. 4:69-6(b)(1) - (11).

Discussion: See §§ 11.13, 11.14, 11.15 below.

□ Determine if further review or relief is sought before administrativeagency; time period does not begin to run until agency review iscompleted.

Authority: N.J. Ct. R. 4:69-6(b)(1) - (11).



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Discussion: See §§ 11.13, 11.14, 11.15 below.

□ Determine when to bring action to challenge action by planningboard or zoning board.

� Challenge denial or modification of application within 45 daysof first publication or mailing of notice to applicant, whicheveris later.

� Challenge to other actions by planning board or zoning boardmust be brought within 45 days of first publication of action innewspaper.

� Ascertain date notice of action is first published, by eitheragency or applicant.

� Determine whether published notice meets requirements forvalid notice under N.J. Ct. R. 4:69-6(b)(3).

� Disregard as irrelevant date zoning ordinance is filed withcounty planning board.

� Treat zoning board’s decision as final, appealable decision,even if further permits must be issued prior to development.

Authority: N.J. Ct. R. 4:69-6(b)(3); Cohen v. Thoft, 368 N.J.Super. 338, 845 A.2d 1281 (App. Div. 2004); Adams v.DelMonte, 309 N.J. Super. 572, 707 A.2d 1061 (App. Div.1998); Island Club Condo. Homeowners Ass’n v. City ofAtlantic City, 298 N.J. Super. 516, 689 A.2d 865 (Law Div.1995).

Discussion: See § 11.14[3] below.

□ Determine whether enlargement of the limitations period is re-quired by interest of justice.

� Determine whether enlargement should be granted becausecase falls within judicially-created exception to limitationsperiod.

� Determine whether case involves important and novel consti-tutional questions.

� Determine whether case involves a challenge to informal or exparte determinations of legal questions by administrative offi-



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cials.

� Determine whether case involves important public intereststhat require adjudication or clarification.

� Determine whether case involves continuing violation of publicrights, such as payments of regular salary to illegally-appointedofficial.

� Determine whether enlargement is otherwise required by inter-est of justice. Consider, for example, whether governmentofficial or agency failed to disclose facts that would have led toa timely challenge.

� Remember that the longer the delay, the less willing the courtwill be to enlarge the time period.

Authority: N.J. Ct. R. 4:69-6(c); Borough of Princeton v. Bd.of Chosen Freeholders of Mercer County, 169 N.J. 135, 152,777 A.2d 19 (2001); Schack v. Trimble, 28 N.J. 40, 145 A.2d 1(1958).


§ 11.13 Determining Whether Rule 4:69-6 Time Limits Apply toActions in Lieu of Prerogative Writs

[1] Commence Action Within 45 Days of Accrual of Right toReview, Hearing or Relief

In general, an action in lieu of prerogative writs must be commenced nolater than 45 days after the accrual of the right to the review, hearing orrelief claimed. N.J. Ct. R. 4:69-6(a). However, if there is a right toadministrative review, and the plaintiff avails himself or herself of thatright, the prescribed time limit does not begin to run until the conclusionof administrative review. Schack v. Trimble, 28 N.J. 40, 49, 145 A.2d 1(1957) (party who diligently pursues administrative remedy has notslumbered on his or her rights and should not be barred from bringingaction in lieu of prerogative writs).

The time limits for bringing an action in lieu of prerogative writs do notapply when the relief sought is in the nature of mandamus, to compel apublic body to perform an act that it allegedly has a continuing duty toperform. Lettieri v. State Bd. of Medical Examiners, 24 N.J. 199, 131 A.2d



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518 (1957) (agency had continuing duty to grant plaintiff his medicallicense after he had fulfilled all requirements); Yanuzzi v. Mayor & Councilof Spring Lake, 22 N.J. 567, 126 A.2d 873 (1956) (action in lieu ofprerogative writs to compel municipality to install sewer mains).

There are special rules applicable to particular types of actions, withwhich counsel should be familiar. These rules are discussed in § 11 - 14below. In addition, the court may significantly enlarge the 45-day period,when required by the interest of justice. N.J. Ct. R. 4:69-6(c). Principlesgoverning enlargement of the period are discussed in § 11 - 16 below.

[2] Do Not Apply Time Limit to Other Causes of Action

The time limits in N.J. Ct. R. 4:69-6 apply to all remedies that couldhave been sought in a prerogative writ action. However, failure to bring anaction in lieu of prerogative writs within the applicable time period is notfatal to those aspects of the complaint that are outside the scope of thetraditional prerogative writ, such as a statutory action for money damages.See, e.g., Neelthak Dev. v. Gloucester Tp., 272 N.J. Super. 319, 639 A.2d1141 (App. Div. 1994) (although action in lieu of prerogative writ wastime-barred, plaintiffs could proceed on those aspects of their claims thatcould not have been raised in action in lieu of prerogative writ).

t Warning: In cases where the limitation period is 45 days frompublication but it is unlikely that publication will occur, the actionshould be filed within 45 days from the time it is no longer reasonableto expect publication. Stokes v. Township of Lawrence, 111 N.J. Super.134, 268 A.2d 10 (App. Div. 1970).

§ 11.14 Determining Whether Different Limitation Period Appliesto Action in Lieu of Prerogative Writs

[1] Bringing Action Contesting Approval of School Bond

An action in lieu of prerogative writ to contest or question an election forapproval of a school bond, pursuant to NJS 18A:24-12 or NJS 18A:24-29,must be brought no later than 15 days after the date of the election. N.J. Ct.R. 4:69-6(b)(1).



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[2] Bringing Action to Review Assessment or Award for MunicipalImprovement

An action in lieu of prerogative writs to review an assessment or awardmade for any municipal improvement must be brought within 30 days fromthe date of the confirmation of such assessment or award. N.J. Ct. R.4:69-6(b)(2). If a public improvement ordinance provides for an assess-ment, any assessment made under the ordinance may be challenged evenafter it is too late to attack the ordinance itself, and even though the attackmay implicate the validity of the ordinance itself. Rutan Estates v.Belleville, 56 N.J. Super. 330, 152 A.2d 853 (App. Div. 1959) (actionchallenging assessment for sewer mains timely, although landowner failedto challenge ordinance authorizing assessment).

The statutory procedure for challenging assessments must be followed ifthe assessment is attacked as merely excessive. However, an action in lieuof prerogative writs may be brought without following the statutoryprocedure if there is a claim that the fundamental rights of property ownershave been violated or the enabling statute or ordinance upon which theassessments were based was unconstitutional. Holloway v. PennsaukenTownship, 12 N.J. 371, 97 A.2d 141 (1953) (statutory procedure must befollowed if assessment attacked as merely excessive).

Accordingly, a property owner who is merely challenging an assessmentas excessive must follow the statutory procedure, which provides that anassessment may be appealed to the Superior Court. In all municipalitiesother than first class cities, a written notice of appeal must be served on thetax collector and the clerk within 30 days of the confirmation of theassessment. NJS 40:56-54. See Oros v. Township of Bridgewater, 317 N.J.Super. 1, 721 A.2d 8 (App. Div. 1998) (challenge to assessment barredbecause property owners failed to provide timely written notice of appealto Tax Collector and Township Clerk).

[3] Challenging Planning Board Determinations

An action to review a determination of a planning board or a zoningboard of adjustment must be brought no later than 45 days after notice ofthe determination has been published in either the official newspaper of themunicipality or a newspaper of general circulation in the municipality. Ifthe determination results in a denial or modification of an application, theaction must be brought no later than 45 days from the publication of thenotice or the mailing of the notice to the applicant, whichever is later. The



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same rule applies to an action to review a resolution by the governing bodyor board of public works of a municipality to approve or disapprove arecommendation made by the planning board or board of adjustment. N.J.Ct. R. 4:69-6(b)(3). See, e.g. Davis v. Planning Bd., 327 N.J. Super. 535,744 A.2d 222 (App. Div. 2000) (action commenced within 45 days ofpublication was timely, despite earlier adoption of similar resolution atnon-conforming public meeting).

The publication may be made by either the applicant or the agency. NJS40:55D-10(i). See, e.g., Cohen v. Thoft, 368 N.J. Super. 338, 845 A.2d 1281(App. Div. 2004) (45-day limitation period counted from date of publica-tion by applicant and not subsequent publication by agency). To be valid,the notice must state the name of the applicant, the location of the property,the nature of the application, and the effect of the determination orresolution. The notice must also state that the determination or resolutionhas been filed in the office of the board or the municipal clerk and isavailable for inspection. N.J. Ct. R. 4:69-6(b)(3). See Island Club Condo.Homeowners Ass’n v. City of Atlantic City, 298 N.J. Super. 516, 524, 689A.2d 865 (Law Div. 1995) (notice stating that “resolution . . . is or willshortly be on file” did not satisfy notice requirements, when resolution hadnot been drafted at time notice was published).

The 45-day period begins to run from the date of publication, even if theadopted resolution has not been formally drafted in final form at the timeof publication. Cohen v. Thoft, 368 N.J. Super. 338, 845 A.2d 1281 (App.Div. 2004) (publication was valid, although ministerial task of draftingresolution in final form had not yet been performed). However, the 45-dayperiod does not begin to run unless there is a written determination orresolution available for inspection, and the resolution must be sufficient toinform interested parties of the basis for the decision from which an appealmay be taken. Island Club Condo. Homeowners Ass’n v. City of AtlanticCity, 298 N.J. Super. 516, 689 A.2d 865, (Law Div. 1995) (publication ofsite plan approval three weeks prior to drafting of memorializing resolutiondid not trigger 45-day period).

The date a zoning ordinance is filed with the county planning board isirrelevant for purposes of determining the limitations period. Faulhaber v.Township Comm., 274 N.J. Super. 83, 643 A.2d 52 (Law Div. 1994) (actionwas untimely when it was commenced within 45 days of date ordinancewas filed with planning board but 10 months after publication).

As a general rule, a zoning board’s determination is a final appealable



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decision, notwithstanding the fact that the developer may still be requiredto apply for a site plan or conditional use approval for the samedevelopment. Adams v. DelMonte, 309 N.J. Super. 572, 707 A.2d 1061(App. Div. 1998) (zoning board’s determination that sewage tank cleaningbusiness was “home occupation” was final appealable decision, despite factthat planning board had not yet issued conditional use permit tolandowner). Therefore, the right to challenge the zoning board’s determi-nation accrues upon publication of the determination, even if furtherpermits must be granted before development can begin.

[4] Challenging Ordinance or Resolution for Public Improvement

An action challenging an ordinance or resolution for a public improve-ment in any municipality must be brought within 30 days of the date theordinance was passed or the resolution was adopted. The 30-day limit alsoapplies to an action to review an ordinance authorizing the construction ofa railroad siding or sidings. N.J. Ct. R. 4:69-6(b)(4). See Meglino v.Township Committee of Eagleswood, 197 N.J. Super. 296, 484 A.2d 1269(App. Div. 1984), rev’d on other grounds, 103 N.J. 144, 510 A.2d 1134(1986) (involving attack on method of financing sewer system).

An action challenging an ordinance for public improvement may not bebrought after a contract for the improvement has been awarded. N.J. Ct. R.4:69-6(b)(10).

[5] Bringing Action in Relation to Joint Sewers or Disposal Plants

An action in lieu of prerogative writs in relation to joint sewers ordisposal plants must be brought within 30 days of the date of the taking ofthe proceeding sought to be reviewed, or after the lapse of 30 days from theentry of the order of the court confirming the assessment. N.J. Ct. R.4:69-6(b)(5).

[6] Bringing Action Concerning Permit to Erect Building in Bed ofHighway

An action to review any decision of a board of chosen freeholdersrefusing or granting a permit to erect a building in the bed of any highwaymust be brought no later than 30 days from the filing of the decision in theoffice of the board. See NJS 40:27-6 (pertaining to permits to erect buildingin bed of highway).



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[7] Bringing Action Under In Rem Tax Foreclosure Act

An action under the In Rem Tax Foreclosure Act (NJS 54:5-104.29 etseq.) must be filed within two months from the filing of an answer denyingthe validity of the tax lien for which the lands were sold and certificateissued, or denying the legality of the proceedings to sell the lands, ordenying the legality of the sale. N.J. Ct. R. 4:69-6(b)(7).

[8] Bringing Action to Review Tax Sale of Land

An action to review a sale of land to enforce an assessment or tax, or asale where assessments and taxes have been included together, must bebrought within 18 months of the date of the sale. This limitation does notapply to proceedings taken after the sale by the purchaser or holder of thetax sale certificate under a statute to procure a deed or perfect title. N.J. Ct.R. 4:69-6(b)(8).

[9] Bringing Action to Contest Tax Sale Certificate

Unless fraud is alleged, an action to contest or set aside a tax salecertificate, notice and affidavit of service recorded as a deed, must bebrought within two years of the date they were recorded. N.J. Ct. R.4:69-6(b)(9). See also NJS 54:5-52 (providing that certificate of sale ispresumptive evidence of truth of statements therein and regularity ofproceedings and that such presumption becomes irrebuttable after twoyears).

[10] Bringing Action to Review Ordinance Authorizing Notes orBonds

An action to review any resolution or ordinance authorizing a munici-pality or other political subdivision to issue notes or bonds must be broughtwithin 20 days of the date of the first publication of the resolution orordinance following its final passage. N.J. Ct. R. 4:69-6(b)(11). See Gallov. Township Committee of Weehawken, 181 N.J. Super. 385, 437 A.2d 738(Law Div. 1981) (20-day time limit for challenge to bond could be enlargedin interests of justice).

§ 11.15 Using Prerogative Writ to Void Action Taken atNonconforming Public Meeting

Any action taken by a public body at a meeting that does not complywith the requirements of the Open Public Meeting Act (OPMA) (NJS



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10:4-6 et seq.) may be challenged by an action in lieu of prerogative writ.The proceeding must be commenced within 45 days of the date the actionis made public. NJS 10:4-15. If an action was taken at a meeting whoseexistence was not disclosed and whose results were not published, the45-day period begins to run upon discovery of the violation. Estate ofDolente v. Borough of Pine Hill, 313 N.J. Super. 410, 417 - 418 (App. Div.1998) (trial court erred in counting 45-day period from date of meetingwhose existence was undisclosed).

If the 45 day period for challenging an action taken at a nonconformingpublic meeting has run, the action may still be challenged if there is stilltime available under N.J. Ct. R. 4:69-6. For example, if a planning orzoning board’s action is being challenged on substantive grounds, ratherthan merely on the grounds of noncompliance with the OPMA, thelimitations period does not begin to run until after publication of theboard’s decision or resolution. Davis v. Planning Bd., 327 N.J. Super. 535,744 A.2d 222 (App. Div. 2000) (action commenced within 45 days ofpublication was timely, despite earlier adoption of similar resolution atnon-conforming public meeting).

If an action that is potentially voidable under the OPMA is later ratifiedat a public meeting that conforms with the OPMA, the limitations periodis measured from the date of the ratified action and not the original action.For example, if an arguably voidable zoning ordinance is subsequentlyratified at a conforming public meeting, the limitations period for chal-lenging the ordinance begins to run on the date the ratified ordinance ispublished. Davis v. Planning Bd., 327 N.J. Super. 535, 744 A.2d 222 (App.Div. 2000).

§ 11.16 Enlarging Time Limit to Bring Action in Lieu of PrerogativeWrits

The court may enlarge the time limit for bringing an action in lieu ofprerogative writs if “the interest of justice so requires.” N.J. Ct. R.4:69-6(c). Enlargement should be granted in cases that involve any of thefollowing:

1. Important and novel constitutional questions; or

2. Informal or ex parte determinations of legal questions by admin-istrative officials; or

3. Important public interests that require adjudication or clarification.



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Brunetti v. Borough of New Milford, 68 N.J. 576, 350 A.2d 19 (1975)(action challenging rent control ordinance involved important constitu-tional issue).

An enlargement of time may also be justified if the challenged actioncould result in a continuing violation of public rights. Borough of Princetonv. Bd. of Chosen Freeholders of Mercer County, 169 N.J. 135, 152, 777A.2d 19 (2001) (enlargement granted in challenge to solid waste contracts,which had not been bid publicly and which exceeded statutory publiccontract duration limits by 10 years). For example, a continuing violationof public rights may exist when public office is held illegally, or whensuccessive payments are made under a contract challenged as illegal. Jonesv. MacDonald, 33 N.J. 132, 162 A.2d 817 (1960) (limitations period did notapply to challenge to dual officeholder, when each exercise of his right tohold office was “a fresh wrong”); Meyers v. Mayor and Council of theBorough of East Paterson, 37 N.J. Super. 122, 128, 117 A.2d 27 (App. Div.1955) (successive payments of salary to holder of illegally created positionconstitute separate remediable acts).

Although enlargement is routinely granted in the situations listed above,the court may enlarge the time for bringing an action in lieu of prerogativewrits whenever it is required by the interests of justice. See, e.g., Adams v.DelMonte, 309 N.J. Super. 572, 580 - 582, 707 A.2d 1061 (App. Div. 1998)(time limit enlarged when meaningful basis for challenging zoning board’sdecision that enterprise was home occupation did not emerge until planningboard hearing conducted seven months later). In considering whether togrant an enlargement of time, the court may also consider whether thedefendant has suffered any prejudice by reason of the delay in bringing theaction. Cohen v. Thoft, 368 N.J. Super. 338, 845 A.2d 1281 (App. Div.2004) (although neighbor’s action challenging variance was not broughtwithin 45 days after first publication by homeowner, enlargement wasproper when, under the circumstances, both agency and plaintiff reasonablybelieved agency’s later publication was first publication); East RutherfordIndustrial Park, Inc. v. State, 119 N.J. Super. 352, 360, 291 A.2d 588 (LawDiv. 1972) (in case involving three consolidated actions, minimal prejudicewould result from enlarging time to bring one action, when other twoactions were timely).

A party’s ignorance of the existence of a cause of action will not preventthe running of a period of limitations, unless there has been concealment ora failure to make a required disclosure of the underlying facts. Reilly v.



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Brice, 109 N.J. 555, 559, 538 A.2d 362 (1988) (enlarging time to challengepublic contract, when municipality failed to adequately describe action ineither its published agenda or minutes).

A court must exercise its discretion in determining whether or not togrant an enlargement. The court is required to consider the potential impactupon the public body, the plaintiff, and any others whose rights may beaffected by the action. In addition, the court should also consider the lengthof the delay and the reason proffered for that delay. The longer a party waitsto mount its challenge, the less it may be entitled to an enlargement.Tri-State Ship Repair and Dry Dock Co. v. City of Perth Amboy, 349 N.J.Super. 418, 793 A.2d 834 (App. Div. 2002) (enlargement of time period notwarranted). However, a court may grant a very substantial enlargement oftime to give affected parties an opportunity to challenge an allegedunlawful government action. See, e.g., Borough of Princeton v. Bd. ofChosen Freeholders of Mercer County, 169 N.J. 135, 777 A.2d 19, (2001)(enlarging time by nine years in action involving solid waste disposalcontracts); Damurjian v. Bd. of Adjustment of Colts Neck, 299 N.J. Super.84, 690 A.2d 655, (App. Div. 1997) (time enlarged by three years in actionchallenging zoning ordinance as impermissibly vague).

A court’s decision to enlarge the time period must be supported byfindings on the record. N.J. Shore Builders Assoc. v. South Brunswick, 325N.J. Super. 412, 739 A.2d 956 (App. Div. 1999) (judge’s conclusorystatement that enlargement was justified by novel constitutional issues wasunsupported by record).



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PART IV: BRINGING AN ACTION IN LIEU OF PREROGATIVEWRITS

§ 11.17 CHECKLIST: Bringing an Action in Lieu of PrerogativeWrits

□ Determine whether stay or other temporary relief is required.

� Ascertain whether client will suffer irreparable harm if tempo-rary relief is not granted. For example, a preliminary injunctionmay be needed to prevent the municipality from enforcing anillegal law.

� Request temporary relief without notice, if client will suffer“immediate and irreparable danger” before hearing can beconducted.

□ Prepare order to show cause or notice of motion, brief in support ofmotion, and supporting affidavits establishing following requiredelements:

� Plaintiff will suffer irreparable harm if injunction is not granted.

� Underlying right sought to be enforced is free from doubt.

� Material facts are not in dispute.

� Granting temporarily relief will not inflict undue hardship ondefendants.

□ File and serve moving papers with complaint or at any timethereafter.

Authority: N.J. Ct. R. 4:69-3, 4:52-1.

Forms: Form CLL 11.1117.01, Motion Seeking Stay of Adminis-trative Proceeding


□ Comply with requirements for drafting, filing and service ofcomplaint.

� Draft complaint in accordance with general principles fordrafting complaint.

� Designate complaint “in Lieu of Prerogative Writs.”



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� Prepare certification that transcript of relevant agency proceed-ings has been ordered.

� File complaint, together with certification, in Superior Court,Law Division, Civil Part.

Authority: N.J. Ct. R. 4:5-1(b), 4:69-1.

Forms: Form CLL 11.1103.01, Complaint in Lieu of Preroga-tive Writs

Form CLL 11.1117.02, Certification for Filing Complaint ThatTranscripts Have Been Ordered


□ Prepare summons in accordance with form prescribed by court.

Authority: N.J. Ct. R. 4:1.


□ Effect service of summons, together with copy of complaint, upondefendant.

� Attach copy of Track Assignment Notice to summons.

� Issue summons within 15 days of Track Assignment Notice.

� Serve summons on presiding officer, clerk, or secretary ofpublic body.

Authority: N.J. Ct. R. 4:4-1 ,4:4-2, 4:4-3, 4:4-4(8), 4:5A-2,4:69-1, 4:69-4; N.J. Ct. R. Appendix XII-A, Summons.

Forms: Form CLL 11.1117.03, Civil Case Information State-ment (CIS) (N.J. Official Form)

Discussion: See § 11.19 below. See also Ch. 2 above(Complaint), Ch. 3 above (Service).

□ Schedule preliminary case conference with court after joinder.Preliminary case conference is required in all actions in lieu ofprerogative writs, and must be conducted within 30 days afterjoinder.

� Prepare statement of factual and legal issues and exhibit list



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and submit to managing judge at least five days beforeconference.

� Determine scope of discovery, if any, to be requested.

Authority: N.J. Ct. R. 4:69-4.

Forms: Form CLL 11.1117.04, Statement of Factual and LegalIssues for Preliminary Conference

Form CLL 11.1117.05, Cover Letter for Statement of Factualand Legal Issues for Preliminary Conference


□ Determine whether court may decide matter on motion for sum-mary judgment.

� Consider bringing summary judgment motion in actions inwhich review of administrative record is either not necessary ornot possible, for example, action brought to compel perfor-mance of ministerial duty, or action challenging municipalordinance.

� Understand that motion for summary judgment is inappropriatein action challenging decision made after evidentiary hearingand based on findings of fact.

Authority: N.J. Ct. R. 4:69-2; Hirth v. City of Hoboken, 337N.J. Super. 149, 766 A.2d 803 (App. Div. 2001); Willoughby v.Planning Board of Township of Deptford, 306 N.J. Super. 266,703 A.2d 668 (App. Div. 1997).


□ Prepare motion for summary judgment.

� Draft notice of motion.

� Draft brief in support of motion.

� Draft statement of uncontested material facts.

� Prepare affidavits in support of motion.

� Prepare copies of all documents and exhibits relied on insupport of motion.



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Authority: N.J. Ct. R. 4:69-2, 4:46-2(a).


□ File and serve motion for summary judgment.

� File motion at any time after filing complaint in actiondemanding performance of ministerial act or duty.

� File motion at least 35 days after filing complaint in any actionother than one demanding performance of ministerial act orduty.

Authority: N.J. Ct. R. 4:69-2, 4:46-1.

Forms: Form CLL 11.1117.06, Notice of Motion for SummaryJudgment


§ 11.18 Applying for Stay or Other Temporary Relief whenBringing Action in Lieu of Prerogative Writs

[1] Applying for Preliminary Injunction to Stay Enforcement ofOrdinance

The gravamen of an action in lieu of prerogative writs is that agovernment action, if allowed to stand, will result in harm to the plaintiff.In order to prevent that harm from occurring while the action is pending,the plaintiff may apply for a stay, restraining order, or other temporaryrelief. N.J. Ct. R. 4:69-3.

The plaintiff may apply for temporary relief at the time the complaint isfiled or later. Application is made for order to show cause or motionsupported by affidavit, accompanied by briefs. The court may grant reliefwith or without terms. N.J. Ct. R. 4:69-3.

[2] Showing Entitlement to Preliminary Injunction

To obtain a preliminary injunction to stay enforcement of an ordinanceor regulation, the plaintiff must show the following:

1. Plaintiff will suffer irreparable harm;

2. The underlying right sought to be enforced is free from doubt;



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3. The material facts are not in dispute; and

4. Granting the preliminary injunction will not inflict undue hardshipon defendant, but denying it will substantially hurt the plaintiff.

News Printing Co. v. Totowa, 211 N.J. Super. 121, 511 A.2d 139 (Law. Div.1986) (preliminary injunction issued to stay enforcement of ordinancerequiring license to place newsracks on street, when denying injunctionwould result in removal of newsracks and interfere with circulation ofnewspaper).

z Strategic Point: Although N.J. Ct. R. 4:69-3 provides for interimrelief in actions in lieu of prerogative writ, the substantive criteriagoverning injunctive relief will be applied to establish entitlement tothat relief. Crowe v. DeGoia, 90 N.J. 126, 447 A.2d 173 (1982); NewsPrinting Co. v. Totowa, 211 N.J. Super. 121, 511 A.2d 139 (Law Div.1986).

[3] Obtaining Temporary Injunction Without Notice and Hearing

The court may grant temporary relief without notice if it appears fromspecific facts shown by affidavit or verified complaint that the plaintiff willsuffer “immediate and irreparable damage” before notice can be served anda hearing conducted. N.J. Ct. R. 4:69-3, 4:52-1.

Exception: In actions in lieu of prerogative writs, applications for exparte interim relief must be brought in accordance with N.J. Ct. R.4:52-1 governing injunctions. N.J. Ct. R. 4:69-3.

See generally Ch. 8 above (Complying with Provisional Remedies, FinalRemedies and Special Proceedings Requirements).

Forms: Form CLL 11.1117.01, Motion Seeking Stay of AdministrativeProceeding



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§ 11.19 Complying with Requirements for Drafting, Filing, andServing Complaint in Action in Lieu of Prerogative Writs

[1] Drafting Complaint

A complaint in lieu of prerogative writs must meet the general require-ments for first pleadings. See N.J. Ct. R. 4:5-1(b). The complaint must bearthe designation “in Lieu of Prerogative Writs.” N.J. Ct. R. 4:69-1.

Under the entire controversy doctrine, any other claims arising out of thesame set of circumstances must be asserted in the same action. N.J. Ct. R.4:30A. Accordingly, claims for equitable or monetary relief must be joinedin the action. Garrou v. Teneck Tyron Co., 11 N.J. 294, 305 (1953) (joinderof equitable claim for injunction with claim in lieu of prerogative writspermissible).

z Strategic Point: In variance cases, counsel should be mindful thata denial of a variance is entitled to greater deference than the grantingof a variance. Omnipoint v. Board of Adjustment of Township ofBedminster, 337 N.J. Super. 398, 767 A.2d 488 (App. Div. 2001),certif. denied, 169 N.J. 607, 782 A.2d 425 (2001).

[2] Filing Complaint

An action in lieu of prerogative writs is commenced by filing acomplaint in the Law Division, Civil Part, of the Superior Court. N.J. Ct.R. 4:2-2, 4:69-1. It may not be filed in the Special Civil Part. N.J. CourtDirective # 2-01.

The filing of the complaint must be accompanied by a certification thatall necessary transcripts of local agency proceedings in the cause have beenordered. N.J. Ct. R. 4:69-4.

z Strategic Point: Contract, tort or other claims joined with actions inlieu of prerogative writs are governed by their own limitation period.Neelthak Development Corp. v. Gloucester Township, 272 N.J. Super.319, 639 A.2d 1141 (App. Div. 1994). Notice requirements of TortClaims Act and Contractual Liability Act must be met. See also N.J. Ct.R. 4:69-6 (setting general limitation for commencing action in lieu of



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prerogative writs at 45 days).

Forms: Form CLL 11.1117.02, Certification for Filing Complaint ThatTranscripts Have Been Ordered

[3] Serving Complaint

The rules governing service and summons in civil actions in the LawDivision apply equally to an action in lieu of prerogative writs. N.J. Ct. R.4:1-1 et seq. (making rules applicable to civil actions in Law Division).

When the defendant is a public body, service is made on the presidingofficer or the clerk or secretary of the public body. N.J. Ct. R. 4:4-4(8).

z Strategic Point: In attacking or defending administrative actionpredicated on a factual record, counsel should argue the substantialevidence rule standard which requires the courts to disturb such actionwhere it is arbitrary, capricious or unreasonable. Cell South of NewJersey, Inc. v. Zoning Board of Adjustment, 172 N.J. 75, 796 A.2d 247(2002).

Forms: Form CLL 11.1103.01, Complaint in Lieu of Prerogative Writs

Form CLL 11.1117.03, Civil Case Information Statement (CIS) (N.J.Official Form)

§ 11.20 Preparing for Preliminary Case Conference in Action inLieu of Prerogative Writs

Preliminary case conferences are conducted in all actions in lieu ofprerogative writs. N.J. Ct. R. 4:69-4. The managing judge is required toconduct the conference within 30 days after joinder for the purpose ofexpediting the disposition of the action. The conference may be conductedeither in chambers or by telephone. N.J. Ct. R. 4:69-4.

Each party must submit a statement of factual and legal issues and anexhibit list to the managing judge at least five days before the conference.N.J. Ct. R. 4:69-4.

The purpose of the conference is to determine the factual and legaldisputes, to mark exhibits and to establish a briefing schedule. Whether



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discovery will be permitted, the scope of such discovery, and the time inwhich it must be completed will also be determined and will be memori-alized in the case management order. N.J. Ct. R. 4:69-4.

The record of agency proceedings is ordinarily submitted to the court atthe conference, if feasible. The conference also provides an opportunity toanswer any questions about the record, including what parts of the recordare relevant to the issues to be determined. Willoughby v. Planning Boardof Township of Deptford, 306 N.J. Super. 266, 703 A.2d 668 (App. Div.1997) (summary judgment is inappropriate in most actions in lieu ofprerogative writs because expedited procedure already exists).

Actions in lieu of prerogative writs are assigned to Track IV to ensuremanagement by an individual judge . N.J. Ct. R. 4:69-4; Supreme CourtCivil Part Best Practices, December 2004, p.8. Ordinarily, Track IV caseshave a discovery period of 450 days. By contrast, the discovery period, ifany, in an action in lieu of prerogative writs is to be determined by themanaging judge and may be considerably shorter. N.J. Ct. R. 4:24-1(a).

t Warning: While N.J. Ct. R. 4:69-4 does not specifically prohibitthe parties from initiating discovery nor expressly suspend the Rulesgoverning discovery, the managing judge must set the scope and timingof any discovery at the mandatory case management conference.Therefore, while counsel should promptly initiate discovery, counselmust justify the discovery sought to the court at the initial caseconference.

Furthermore, while a Track IV assignment provides for a 450-daydiscovery period (N.J. Ct. R. 4:24-1(a)), the requirements of establish-ing a briefing schedule and marking of exhibits at the initial conferencereflects the New Jersey Supreme Court’s intent to substantiallyabbreviate that discovery period. N.J. Ct. R. 4:69-4.

Forms: Form CLL 11.1117.04, Statement of Factual and Legal Issuesfor Preliminary Conference

Form CLL 11.1117.05, Cover Letter for Statement of Factual andLegal Issues for Preliminary Conference



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§ 11.21 Determining Whether to Move for Summary Judgment inAction in Lieu of Prerogative Writs

[1] Moving for Summary Judgment When Agency Record IsAvailable for Judicial Review

As a general rule, summary judgment is inappropriate in actions in lieuof prerogative writs that challenge a decision made after a plenary hearingconducted before an agency, in which factual findings have been made onthe record. In such cases, the court must make its decision based solely ona review of the agency record. The court must affirm the agency’s decisionif the agency’s factual findings are based on substantial evidence and itsexercise of discretion was not arbitrary and capricious. Early resolution ofthese cases can be had through the established procedure of filing briefsand oral argument after submission of the agency record. Thus, summaryjudgment is not only inappropriate but unnecessary. Willoughby v. PlanningBoard of Township of Deptford, 306 N.J. Super. 266, 703 A.2d 668 (App.Div. 1997) (trial court should have refused to consider defendant’ssummary judgment motion as to portion of plaintiff’s complaint challeng-ing grant of site-plan approval). But see Institute for Evaluation &Planning v. Board of Adjustment, 270 N.J. Super. 396, 637 A.2d 235 (LawDiv. 1993) (granting summary judgment to plaintiff in action challengingzoning board’s denial of plaintiffs’ application to operate group home forgirls).

Notwithstanding this rule, summary judgment may be sought by adefendant who contends that the action was filed after the time allowed byN.J. Ct. R. 4:69-6, or that the plaintiff had no standing to bring the action.Willoughby v. Planning Board of Township of Deptford, 306 N.J. Super.266, 703 A.2d 668 (App. Div. 1997) (court could consider summaryjudgment motion based on untimeliness of complaint in action in lieu ofprerogative writs); Hirth v. City of Hoboken, 337 N.J. Super. 149, 766 A.2d803 (App. Div. 2001) (claim that plaintiff lacked standing to challengeblight determination and redevelopment plan was purely legal claim thatcould be brought on motion for summary judgment).

Exception: In action in lieu of prerogative writs, summary judgment isappropriate and should be sought where there is no record below tosupport contested administrative action. Mitchell v. City of Somers



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Point, 281 N.J. Super. 492, 658 A.2d 1276 (App. Div. 1994).

[2] Moving for Summary Judgment to Compel Performance ofMinisterial Act

If the action is brought to compel the performance of a ministerial act orduty, the plaintiff may move for summary judgment at any time after filingthe complaint. N.J. Ct. R. 4:69-2. See, e.g., Aparin v. County of Gloucester,345 N.J. Super. 41, 783 A.2d 271 (Law. Div. 2000) (granting summaryjudgment to plaintiff park rangers in action to compel county to providethem with required police training courses).

z Strategic Point: An action in lieu of prerogative writ premised uponmandamus should be brought where a duty to be performed isministerial and not discretionary. Loigman v. Township Committee ofMiddletown, 297 N.J. Super. 287, 687 A.2d 1091 (App. Div. 1997).

[3] Moving for Summary Judgment in Action ChallengingMunicipal Ordinance

Either party may move for summary judgment if the prerogative writaction challenges a municipal ordinance. See, e.g., Mitchell v. City ofSomers Point, 281 N.J. Super. 492, 500, 658 A.2d 1276 (App. Div. 1994)(summary judgment granted in favor of municipality, in action by part-timetax assessor challenging municipality’s decision to make tax assessorposition full-time). Evidentiary hearings are not usually conducted beforean ordinance is enacted, and ordinances are not ordinarily based on findingsof fact. When there are no findings of fact for the court to review, andresolution of the action depends on disputed factual issues, the caseproceeds in the same manner as other civil litigation. In such cases, thereis an opportunity for discovery and pretrial motions, including a motion forsummary judgment. Hirth v. City of Hoboken, 337 N.J. Super. 149, 766A.2d 803 (App. Div. 2001) (city moving for summary judgment failed toshow absence of any disputed material fact concerning challenged rede-velopment plan).



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§ 11.22 Moving for Summary Judgment in Action in Lieu ofPrerogative Writs

[1] Preparing Summary Judgment Motion

A motion for summary judgment must be supported by a brief and mustbe accompanied by a statement of undisputed facts, with citations to thesupporting evidence in the motion record. The party may also choose tosubmit affidavits in support of the motion. N.J. Ct. R. 4:46-2(a). Affidavitsare required in a summary judgment motion in an action to demand theperformance of a ministerial act or duty. N.J. Ct. R. 4:69-2.

A party moving for summary judgment in an action in lieu of prerogativewrits has the same burden as any other civil litigant moving for summaryjudgment. The party must establish that there is no genuine issue ofmaterial fact and that it is entitled to judgment as a matter of law. N.J. Ct.R. 4:46-2(c).

[2] Filing Summary Judgment Motion

A plaintiff may move for summary judgment in an action demanding theperformance of a ministerial act or duty at any time after filing thecomplaint. N.J. Ct. R. 4:69-2. Otherwise, a plaintiff must wait until 35 daysafter filing the complaint to move for summary judgment. N.J. Ct. R.4:46-1. A defendant may move for summary judgment at any time N.J. Ct.R. 4:46-1.

t Warning: Counsel challenging administrative action should alter-natively seek remand if an incomplete administrative record arguablyprecludes review because remand is required under such circum-stances. Scardigli v. Borough of Haddonfield, 300 N.J. Super. 314, 692A.2d 1012 (App. Div. 1997).

Forms: Form CLL 11.1117.06, Notice of Motion for SummaryJudgment



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PART V: APPEALING INTERLOCUTORY ORDER OFAGENCY OR OFFICER

§ 11.23 CHECKLIST: Appealing Interlocutory Order of Agency orOfficer

□ Determine whether to seek leave to appeal interlocutory order.

� Consider that decision to grant review is within sole discretionof Law Division.

� Consider that interlocutory review is granted only when re-quired by interests of justice.

� Consider that no prejudice results from either failure to seekreview or court’s denial of review of interlocutory order.

Authority: N.J. Ct. R. 4:69-7, 2:2-4; State v. Reldon, 100 N.J.187 (1985); Edwards v. McBreen, 369 N.J. Super. 415, 849A.2d 204 (App. Div. 2004).


□ Prepare, file and serve necessary papers to seek leave to appealinterlocutory order.

� Draft notice of motion for leave to appeal interlocutory order.

� Draft brief supporting motion for leave to appeal.

� Prepare affidavits necessary to determine motion.

� Prepare copies of portions of agency record essential todetermining motion.

� File notice of motion, brief, affidavits, and agency record withcourt within 20 days after entry of order being appealed.

� Serve copies of moving papers on opposing party at least 10days before return date.

Authority: N.J. Ct. R. 4:69-7, 3:24(a), 3:24(c).


§ 11.24 Determining Whether Interests of Justice MeritInterlocutory Appeal

If a final decision or action of an agency or officer may be reviewed by



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means of an action in lieu of prerogative writ, a party may also seek reviewof an interlocutory order of the agency or officer. N.J. Ct. R. 4:69-7. Aninterlocutory order is an order that does not finally determine a cause ofaction, but only decides some intervening matter pertaining to the cause ofaction. Moon v. Warren Haven Nursing Home, 182 N.J. 507, 867 A.2d 1174(2005) (interlocutory order requires further steps to enable the court toadjudicate cause on its merits).

To obtain interlocutory review, the aggrieved party must apply to thecourt for leave to appeal the interlocutory order. N.J. Ct. R. 4:69-7. It iswithin the Law Division’s sole discretion to grant or deny leave to appealan interlocutory order. Interlocutory review is granted only in extraordinarycircumstances, in the interests of justice. See Edwards v. McBreen, 369 N.J.Super. 415, 849 A.2d 204 (App. Div. 2004) (discussing court’s discretionto grant interlocutory review). Interlocutory review is granted infrequently,because piecemeal adjudication of controversies is disfavored. Moon v.Warren Haven Nursing Home, 182 N.J. 507, 867 A.2d 1174 (2005)(discussing court’s attitude toward interlocutory review in context of actionbrought under Tort Claims Act).

The denial of interlocutory review does not prejudice review of the sameorder in a later appeal. State v. Reldan, 100 N.J. 187, 495 A.2d 76 (1985)(discussing interlocutory appeals in criminal context). Likewise, failure toseek interlocutory review of an order does not affect the court’s power toreview the order in a later appeal.

§ 11.25 Applying for Leave to Appeal Interlocutory Order

The procedure used to appeal an interlocutory order of a local agency isthe same procedure used to appeal an interlocutory order of a court oflimited criminal jurisdiction, to the extent applicable. N.J. Ct. R. 4:69-7.

Either party may seek leave to appeal to the Law Division from aninterlocutory order entered by an administrative agency. A notice of motionfor leave to appeal the interlocutory order must be filed within 20 days afterthe order is entered, and a copy of the notice must be served on theopposing party at least 10 days before the return date. N.J. Ct. R. 3:24(c).The time period for applying for an interlocutory appeal is mandatory andcannot be enlarged. N.J. Ct. R. 1:3(c); Geiger v. Levco Route 46 Associates,181 N.J. Super. 278, 437 A.2d 336 (Law Div. 1981) (court did not havediscretion to consider untimely application to appeal interlocutory order).

The notice of motion must be accompanied by a brief and by copies of



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all papers of record and any affidavits essential to the determination of themotion. N.J. Ct. R. 3:24(c). Notice of the application must be given by theparty seeking leave to appeal to all other parties in interest. N.J. Ct. R.4:69-7.

The court may grant or deny leave to appeal an agency’s interlocutoryorder on terms. The court may grant the motion and simultaneously decidethe appeal on the merits on the papers before it. Alternatively, it may directthe filing of additional briefs or make such other order as it deemsappropriate for the expeditious disposition of the matter. A copy of anyorder or judgment entered by it shall be promptly transmitted to the agency.N.J. Ct. R. 3:24-1 et seq.



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Documents

Chapter 11 ACTIONS IN LIEU OF PREROGATIVE WRITSbookstore.lexis.com/bstore/sample//bender/1422405605.pdf · Chapter 11 ACTIONS IN LIEU OF PREROGATIVE WRITS Synopsis ... § 11.07 Determining