Changed the Maxpages

Home , Prerogative writ

0001 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:04 2006 [ST: 1] [ED: 10000] [REL: 2007] (Beg Group) VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

Chapter 11

ACTIONS IN LIEU OF PREROGATIVE WRITS

Synopsis

PART I: STRATEGY § 11.01 Scope § 11.02 Objective and Strategy PART II: DETERMINING WHETHER ACTION IN LIEU OF PREROGATIVE WRITS MAY BE BROUGHT § 11.03 CHECKLIST: Determining Whether Action in Lieu of Prerogative Writs May Be Brought § 11.04 Understanding Nature and Purpose of Action in Lieu of Prerogative Writs [1] Understanding that Availability of Action in Lieu of Prerogative Writs Is Limited to that of Traditional Prerogative Writs [2] Maintaining Action in Lieu of Prerogative Writs as of Right § 11.05 Determining Whether Review of Official Action Could Have Been Sought by Applying for Writ of Certiorari [1] Determining Whether Review of Agency or Municipal Action is Sought [2] Determining Whether Adequate Remedy at Law Exists [3] Considering that Certiorari Review of Actions by Judicially-Created Agencies Is Unavailable § 11.06 Determining Whether Writ of Mandamus Was Available to Compel Official Action Sought 11-1 0002 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:05 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

NEW JERSEY PLEADINGS 11-2

[1] Determining Whether Compelling Official Action Is Remedy Sought [2] Considering that Mandamus Can Only Be Used After Actual Default § 11.07 Determining Whether Writ of Quo Warranto or Prohibition Could Have Been Sought [1] Considering Whether Writ of Quo Warranto Could Have Been Used to Challenge Right to Hold Public Office [2] Considering Whether Traditional Writ of Prohibition Could Have Been Sought § 11.08 Considering Whether Matter Must Be Appealed to Appellate Division Because It Concerns State Agency Action [1] Determining Whether Matter Concerns State Agency Action [2] Bringing Action in Lieu of Prerogative Writs Where State Agency’s Authority Is Conﬁned to Single Locality [3] Bringing Action in Lieu of Prerogative Writs Where No Record Is Available for Appellate Review § 11.09 Determining Whether Challenge to Agency Action Must Be Brought in Tax Court § 11.10 Determining Whether Exhaustion of Right of Review Before Administrative Agency Is Required [1] Understanding Purpose of Exhaustion Requirement [2] Determining Whether Administrative Review Unnecessary Because of Lack of Formal Administrative Review Process [3] Considering Whether Administrative Agency Has Jurisdiction [4] Considering Whether Exhaustion Requirement May Be Waived [5] Determining Whether Exhaustion Is Not Required Because Issue Is Purely Question of Law [6] Determining Whether Exhaustion of Administrative Remedies Is Unnecessary Because Enactment Is 0003 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:05 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

11-3 ACTIONS IN LIEU OF PREROGATIVE WRITS

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 IN LIEU OF PREROGATIVE WRITS MUST BE BROUGHT § 11.12 CHECKLIST: Determining Period in Which Action in Lieu of Prerogative Writs Must Be Brought § 11.13 Determining Whether Rule 4:69-6 Time Limits Apply to Actions in Lieu of Prerogative Writs [1] Commence Action Within 45 Days of Accrual of Right to 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 0004 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:05 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

NEW JERSEY PLEADINGS 11-4

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 Authorizing Notes or Bonds § 11.15 Using Prerogative Writ to Void Action Taken at Nonconforming Public Meeting § 11.16 Enlarging Time Limit to Bring Action in Lieu of Prerogative Writs PART IV: BRINGING AN ACTION IN LIEU OF PREROGATIVE WRITS § 11.17 CHECKLIST: Bringing an Action in Lieu of Prerogative Writs § 11.18 Applying for Stay or Other Temporary Relief when Bringing Action in Lieu of Prerogative Writs [1] Applying for Preliminary Injunction to Stay Enforcement 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 in Lieu of Prerogative Writs § 11.21 Determining Whether to Move for Summary Judgment in Action in Lieu of Prerogative Writs [1] Moving for Summary Judgment When Agency Record Is Available for Judicial Review [2] Moving for Summary Judgment to Compel Performance of Ministerial Act [3] Moving for Summary Judgment in Action Challenging Municipal Ordinance 0005 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:05 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

11-5 ACTIONS IN LIEU OF PREROGATIVE WRITS

§ 11.22 Moving for Summary Judgment in Action in Lieu of Prerogative Writs [1] Preparing Summary Judgment Motion [2] Filing Summary Judgment Motion PART V: APPEALING INTERLOCUTORY ORDER OF AGENCY OR OFFICER § 11.23 CHECKLIST: Appealing Interlocutory Order of Agency or Officer § 11.24 Determining Whether Interests of Justice Merit Interlocutory Appeal § 11.25 Applying for Leave to Appeal Interlocutory Order 0006 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:05 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

§ 11.01 NEW JERSEY PLEADINGS 11-6

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 prerogative 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 basic understanding of the concept of prerogative writs and the requirements for bringing an action in lieu of such writs. This procedure is important for those seeking to challenge the actions of local governments or officials. Unlike other areas of the law, the failure here to comply with the technical requirements of the Court Rules can prove fatal, especially with respect to the various limitations periods. Therefore, an understanding of these procedural requirements is critical. 0007 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:06 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

11-7 ACTIONS IN LIEU OF PREROGATIVE WRITS § 11.03

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

§ 11.03 CHECKLIST: Determining Whether Action in Lieu of Prerogative Writs May Be Brought □ Determine whether review, hearing, and relief would have been available under traditional prerogative writ. Determine whether action challenges action or inaction of local government agency, government official, or municipality. Determine whether prerogative writ could not have been used because 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 of municipality or administrative agency, including municipal ordinances, agency regulations or agency determinations. Authority: Ward v. Keenan, 3 N.J. 298, 70 A.2d 77 (1949). Discussion: See § 11.05 below. □ Determine whether writ of mandamus could have issued because action seeks to compel lower court or government entity to perform a mandatory or ministerial duty. Consider that writ of mandamus was used to compel government agency or official to perform duty, but could not dictate manner in which duty was performed. Determine whether mandamus would have been available because duty is ministerial duty that does not require exercise of discretion. Determine whether mandamus would have been available to compel official or agency to exercise its discretion. 0008 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:06 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

§ 11.03 NEW JERSEY PLEADINGS 11-8

Consider that writ of mandamus could be used only if official or agency failed to perform duty, and not in anticipation of such failure.

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

Discussion: See § 11.06 below. □ Determine whether relief could have been obtained through writ of quo warranto or prohibition. Determine whether action is brought to challenge individual’s right 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, 121 A.2d 402, (App. Div. 1956). Discussion: See § 11.07 below. □ Determine whether matter must be appealed to Appellate Division because it concerns state agency action. Consider that exclusive method for reviewing action or inaction of state agency or official is by appeal to Superior Court, Appellate Division. Determine whether exception to rule requiring appeal of state action to Appellate Division applies because authority of agency in question is conﬁned to single locality. Determine whether exception to rule requiring appeal of state action to Appellate Division applies because plenary hearing is necessary to develop record and there was no adversarial proceeding before state agency. Authority: N.J. Ct. R. 4:69-1, 2:2-3; Selobyt v. Keough-Dwyer Correctional Facility, 375 N.J. Super. 91, 866 A.2d 101 (App. Div. 2005), Montclair v. Hughey, 222 N.J. Super. 441, 537 A.2d 692 (App. Div. 1987). Discussion: See § 11.08 below. □ Determine whether challenge to agency action must be brought in 0009 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:06 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

11-9 ACTIONS IN LIEU OF PREROGATIVE WRITS § 11.03

Tax Court because review of ﬁnal decision with respect to tax matter is sought. Determine whether matter must be brought in Tax Court because it involves review of ﬁnal decision of municipality or county tax board regarding tax matter. Consider that enforcement of county tax board decision, in absence of appeal, may be sought by action in lieu of prerogative 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). Discussion: See § 11.09 below. □ Determine whether right of review before administrative agency has been exhausted. Determine whether it is unnecessary to seek administrative review because there is no formal administrative review process Authority: N. J. Ct. R. 4:69-5; Ward v. Keenan, 3 N.J. 298, 70 A.2d 77 (1949). Discussion: See § 11.10 below. □ Consider whether exhaustion requirement may be waived, because one 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 judicial action. Exhaustion of administrative remedies would be futile. Ordinance or regulation is challenged as facially unconstitutional. Authority: N. J. Ct. R. 4:69-5; Ward v. Keenan, 3 N.J. 298, 308, 70 A.2d 77 (1949). Discussion: See § 11.10 below. 0010 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:06 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

§ 11.04[1] NEW JERSEY PLEADINGS 11-10

□ Determine whether client has standing to bring action in lieu of prerogative writs. Determine whether there is substantial likelihood that client’s interests will be adversely affected by decision being challenged. Determine whether client is citizen taxpayer of locality. Understand that citizens have broad right to challenge local legislative and judicial action, without need to show unique personal detriment. If client is governing body, determine whether there is substantial likelihood that client will suffer injury, independent of injury to citizens, in event of adverse decision. If client is association, determine whether there is substantial likelihood that members of association will suffer harm in event 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). Discussion: See § 11.11 below.

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

[1] Understanding that Availability of Action in Lieu of Prerogative Writs Is Limited to that of Traditional Prerogative Writs Prerogative writ actions are the traditional means used by citizens to challenge local government and agency decisions or actions. Alexander’s Dep’t Stores, Inc. v. Paramus, 125 N.J. 100, 592 A.2d 1168 (1991) (reviewing use of traditional prerogative writs). In New Jersey, the traditional prerogative writs of certiorari, mandamus, quo warranto, and prohibition are consolidated into a single action, known as an “action in lieu of prerogative writs.” N.J. Const. Article VI, § 5, ¶ 4. An action in lieu of prerogative writs may be brought if “review, hearing, and relief” was previously 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 0011 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:06 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

11-11 ACTIONS IN LIEU OF PREROGATIVE WRITS § 11.04[2]

adheres to the basic principles of the traditional writ it replaces. Although the procedure for bringing an action in lieu of prerogative writs differs from the procedures for bringing the various prerogative writs, the substantive law governing the prerogative writs is still applicable. Brunetti v. Borough of New Milford, 68 N.J. 576, 350 A.2d 1 (1975) (exceptions to exhaustion requirement under decisional law pertaining to prerogative writs also apply to in-lieu proceedings). Accordingly, an action in lieu of prerogative writs may be brought only if review, hearing, or relief would have been available under 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 be brought to challenge decision of judicially-created fee arbitration committee, because prerogative writ of certiorari could only be used to challenge actions of administrative agencies). Therefore, it is important to understand these writs to determine whether an action in lieu of prerogative writs may be brought. Although an action in lieu of prerogative writs cannot be brought unless relief would have been available under a traditional prerogative writ, it is unnecessary to identify the traditional prerogative writ that corresponds to the 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 to eliminate 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. By contrast, in the past, courts had discretion to deny an application for a prerogative writ, such as a writ of mandamus, and often did so without explanation. Ward v. Keenan, 3 N.J. 298, 70 A.2d 77 (1949) (providing detailed discussion of actions in lieu of prerogative writs).

z Strategic Point: The rules governing action in lieu of prerogative writs do not reference or alter any basis for a claim of a constitutional right to a jury trial that might otherwise be asserted in certain prerogative 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). 0012 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:06 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

§ 11.05[1] NEW JERSEY PLEADINGS 11-12

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

[1] Determining Whether Review of Agency or Municipal Action is Sought The prerogative writ of certiorari provided the means of seeking redress for illegal government actions that invaded a citizen’s rights. Certiorari was used to review quasi-judicial, quasi-legislative, and administrative actions of all kinds. Ward v. Keenan, 3 N.J. 298, 70 A.2d 77 (1949) (providing history of prerogative writ actions in New Jersey). Thus, certiorari was used to review the actions of inferior tribunals, such as administrative agencies. Wyzykowski v. Rizas, 132 N.J. 509, 626 A.2d 406 (1993) (court had jurisdiction to determine whether planning board had conﬂict of interest in granting approvals of development application submitted by mayor in private capacity). Certiorari was also commonly used to review municipal ordinances. Hills Development Co. v. Bernards Township, 103 N.J. 1, 510 A.2d 621 (1986) (review of provisions of Fair Housing Act did not impermissibly interfere with court’s right to review municipal housing ordinances). The prerogative writ of certiorari was predominantly an appellate form of relief, and was used to review errors of law apparent on the face of the record made by a quasi-judicial tribunal. Baldwin Constr. Co. v. Essex County Bd. of Taxation, 16 N.J. 329, 345, 108 A.2d 598 (1954) (distin- guishing between certiorari and mandamus). However, under current practice, the court has discretion to permit additional discovery and consider extrinsic evidence in an action in lieu of the prerogative writ of certiorari. Romanowski v. Brick, 185 N.J. Super. 197, 447 A.2d 1352 (Law Div. 1982) (granting de novo review to suspended police officers, who would have been entitled to new hearing but for fortuitous circumstances of their sentences).

[2] Determining Whether Adequate Remedy at Law Exists Certiorari was not available if there was another, adequate remedy, such as monetary damages. Accordingly, an action in lieu of the prerogative writ of 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 tax overpayments because money judgment was adequate remedy). 0013 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:07 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

11-13 ACTIONS IN LIEU OF PREROGATIVE WRITS § 11.06[1]

[3] Considering that Certiorari Review of Actions by Judicially- Created Agencies Is Unavailable Because there was no certiorari review of actions by judicially-created agencies, an action in lieu of prerogative writs cannot be used to seek review 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 be brought to challenge decision of judicially-created fee arbitration committee because prerogative writ of certiorari could only be used to challenge actions of administrative agencies).

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

[1] Determining Whether Compelling Official Action Is Remedy Sought The prerogative writ of mandamus is used to remedy official inaction. Joseph v. Passaic Hospital, 26 N.J. 557, 141 A.2d 18 (1958) (discussing use of writ of mandamus). The writ of mandamus is used to compel a government official or entity to perform a required ministerial duty. A duty is ministerial if it is absolutely required and involves no more than the execution of a set task, and the manner in which the task is to be performed is prescribed by law. A duty is not ministerial when there is room for the exercise of discretion. In re Failure by the Dep’t of Banking & Ins., 336 N.J. Super. 253, 764 A.2d 494, (App. Div. 2001) (when legislation required agency to revise dental fee schedule biannually but did not impose deadline, agency had discretion as to timing of act and court would not impose deadline). Mandamus is also available to compel an agency to exercise its discretion, if it has failed to perform a mandatory duty that requires the exercise of discretion. In such cases, the court must order the government entity to perform its duty, without dictating how it should exercise its discretion. 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 (Law Div. 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 to compel a government entity to perform a speciﬁc ministerial act or to 0014 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:07 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

§ 11.06[2] NEW JERSEY PLEADINGS 11-14

compel the performance of a discretionary function. However, an action in lieu of prerogative writs cannot be used to compel an agency to exercise its discretion in a speciﬁc manner, because the prerogative writ of mandamus could not have been used in that manner.Loigman v. Middletown Tp., 297 N.J. Super. 287, 687 A.2d 1091 (App. Div. 1997)(taxpayer could not bring action to enforce public sector labor agreement). Mandamus may not be used if an ordinary action would provide an equally adequate and complete remedy. However, the other remedy must be both realistically adequate, and available. Garrou v. Teaneck Tryon Co., 11 N.J. 294, 94 A.2d 332 (1953) (indictment of public officials for failing to enforce zoning ordinance would not provide adequate remedy to aggrieved neighbor). In addition, a remedy in mandamus is inappropriate if its effect would be to harm the public, to cause confusion and disorder, or to 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, as required by statute, but delaying effect of mandate for two years, to avoid detriment to community).

[2] Considering that Mandamus Can Only Be Used After Actual Default The traditional writ of mandamus cannot be used in anticipation of official inaction, but only to remedy such inaction once it has occurred. In re 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 of prerogative writs to force SCI to refer evidence of unlawful disclosures to Attorney General).

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

[1] Considering Whether Writ of Quo Warranto Could Have Been Used to Challenge Right to Hold Public Office The prerogative writ of quo warranto was used to challenge the right of an individual to hold a public office. New Jersey State Lodge-Fraternal Order of Police v. Aaron, 39 N.J. Super. 423, 121 A.2d 402 (App. Div. 1956) (action challenging legality of appointment of police officers sounded in quo warranto). Under current law, an action in lieu of prerogative writ may be brought 0015 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:07 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

11-15 ACTIONS IN LIEU OF PREROGATIVE WRITS § 11.07[2]

against a person “for usurping, intruding into or unlawfully holding or executing” any public office or franchise. NJS 2A:66-6. If the officeholder was ineligible at the time he or she was appointed or elected, the proper means of challenging his or her right to hold office is by means of an action in lieu of prerogative writ. Pickett v. Harris, 219 N.J. Super. 253, 530 A.2d 319 (App. Div. 1987) (violation of court rule prohibiting holding dual office did not affect council member’s right to hold office). The statutory action for challenging an individual’s right to hold office may be brought by a person who claims a right to the office, or by any person who would have had standing to seek a prerogative writ of quo warranto. NJS 2A:66-6, 2A:66-8. Accordingly, an action in lieu of the prerogative 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 citizen and taxpayer of the municipality. New Jersey State Lodge-Fraternal Order of 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 quo warranto). It is not enough that the plaintiff be a taxpayer of the state; the plaintiff must actually pay taxes in the municipality involved. Demoura v. Newark, 74 N.J. Super. 49, 180 A.2d 513 (App. Div. 1962) (summary judgment granted against plaintiff who failed to provide legal proof that he was city taxpayer).

[2] Considering Whether Traditional Writ of Prohibition Could Have Been Sought Prohibition was the traditional writ used to block proceedings when a tribunal was acting “manifestly beyond its jurisdiction.” Alexander v. Crollott, 199 U.S. 580, 26 S. Ct. 161, 50 L. Ed. 317 (1905) (writ should issue only when there is no other remedy). The writ of prohibition was rarely 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 in which prohibition was granted). The writ of prohibition could only be issued against an inferior tribunal; it could not be used to restrain proceedings in the same court or in a court with equal though different jurisdiction. Swanson v. Swanson, 8 N.J. 169, 84 A.2d 450 (1951) (writ of prohibition not available in Superior Court against another judge or division of Superior Court). Although virtually never used in New Jersey, an action in lieu of 0016 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:07 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

§ 11.08[1] NEW JERSEY PLEADINGS 11-16

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

§ 11.08 Considering Whether Matter Must Be Appealed to Appellate 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 is available under N.J. Ct. R. 2:2-3, which governs appeals to the Appellate Division. N. J. Ct. R. 4:69-1. Under N.J. Ct. R. 2:2-3, the exclusive method for reviewing a ﬁnal action or inaction of a state administrative agency or officer is by direct appeal 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 brought by state employees, although underlying action was being heard in Law Division). The Appellate Division also has exclusive jurisdiction to review the 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 writs in non-tax matters challenging an agency, counsel must determine the following: (1) whether the agency is a local agency; if the agency is a state agency; whether authority is conﬁned to a single locality; and (2) whether there is no record available. Unless one of these conditions exist, relief must be sought in the Appellate Division. N.J. Ct. R. 4:69-1.

[2] Bringing Action in Lieu of Prerogative Writs Where State Agency’s Authority Is Conﬁned to Single Locality Review of an agency’s action is not available under N.J. Ct. R. 2:2-3 if the agency’s authority is conﬁned to a single locality, even if the agency can be considered a state agency for most purposes. In such cases, a proceeding in lieu of prerogative writ is the proper means of obtaining 0017 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:07 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

11-17 ACTIONS IN LIEU OF PREROGATIVE WRITS § 11.08[3]

review. Selobyt v. Keough-Dwyer Correctional Facility, 375 N.J. Super. 91, 866 A.2d 101 (App. Div. 2005) (although county correctional facility was extensively regulated by state department of corrections, its authority was strictly local, and appeal of facility’s action was by action in lieu of prerogative 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 on local basis; review of commission’s land use actions must be sought by action in lieu of prerogative writ).

[3] Bringing Action in Lieu of Prerogative Writs Where No Record 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 is consequently no record available for review. Pﬂeger v. State Highway Dep’t, 104 N.J. Super. 289, 250 A.2d 16 (App. Div. 1968) (condemnation by Department of Transportation was properly challenged by action in lieu of prerogative writs in Law Division, because there was no provision for evidentiary hearing in condemnation proceeding). In such cases, review requires the exercise of such trial court functions as gathering evidence and making ﬁndings of facts. Accordingly, a proceeding in lieu of prerogative writs is appropriate to review the action of a state agency if there has not been an adversarial proceeding at the agency level, and a hearing is necessary to develop a record. Montclair v. Hughey, 222 N.J. Super. 441, 537 A.2d 692 (App. Div. 1987) (challenge to Department of Environmental Protection’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 in the proceedings below should seek permission to engage a certiﬁed shorthand reporter where the official record will be preserved by electronic means since that party bears the burden of reconstructing gaps 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). 0018 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:08 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

§ 11.09 NEW JERSEY PLEADINGS 11-18

§ 11.09 Determining Whether Challenge to Agency Action Must Be Brought in Tax Court A proceeding in lieu of prerogative writs may not be brought if the Tax Court 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 with respect to a tax matter, including decisions of county and municipal agencies and officials. A ﬁnal decision is any “act, action, proceeding, ruling, decision, order or judgment including the promulgation of any rule or regulation with respect to a tax matter.” N.J. Ct. R. 8:2-1 et seq. The Tax Court has initial review jurisdiction of such local matters as realty transfer fees 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 county tax board decision in the absence of an appeal. Therefore, an action to require a municipality to comply with a county tax board decision is properly brought in the Law Division by a proceeding in lieu of prerogative writs. Hernandez v. W. N.Y., 18 N.J. Tax Ct. 438 (1999) (Tax Court did not have jurisdiction to hear application to compel municipality to pay interest on refund).

§ 11.10 Determining Whether Exhaustion of Right of Review Before Administrative Agency Is Required

[1] Understanding Purpose of Exhaustion Requirement An action in lieu of prerogative writs ordinarily may not be brought if there 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 a body possessing expertise in the area; 2. To allow for administrative resolution of the dispute, if possible, so that there is no need to institute suit; and 3. To create a factual record necessary for meaningful appellate review. Paterson Redevelopment Agency v. Schulman, 78 N.J. 378, 396 A.2d 573 0019 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:08 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

11-19 ACTIONS IN LIEU OF PREROGATIVE WRITS § 11.10[4]

(1979) (landowners seeking relocation costs after condemnation should have exhausted agency review procedures, despite possible constitutional issue). However, exhaustion of the right of administrative review is not necessary when it is “manifest that the interest of justice requires otherwise.” N.J. Ct. R. 4:69-5.

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

[2] Determining Whether Administrative Review Unnecessary Because of Lack of Formal Administrative Review Process A plaintiff is not required to seek administrative review if no formal review process exists for administrative resolution of the type of dispute at issue. Aparin v. County of Gloucester, 345 N.J. Super. 41, 783 A.2d 271 (Law Div. 2000) (no formal administrative procedure available to county rangers seeking to compel county to provide them with police training, as required by their civil service job speciﬁcation).

[3] Considering Whether Administrative Agency Has Jurisdiction An agency may not consider a matter that falls outside its statutory jurisdiction, even if the matter is related to areas within the agency’s jurisdiction. Alexander’s Dep’t Stores, Inc. v. Paramus, 125 N.J. 100, 592 A.2d 1168 (1991) (Council on Affordable Housing (COAH) lacked jurisdiction to consider whether municipality’s zoning ordinance satisﬁed substantive and procedural standards unrelated to Mt. Laurel requirements).

[4] Considering Whether Exhaustion Requirement May Be Waived The requirement that administrative remedies must be exhausted before 0020 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:08 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

§ 11.10[5] NEW JERSEY PLEADINGS 11-20

an action in lieu of prerogative writs is brought is not an absolute jurisdictional requirement. Abbott v. Burke, 100 N.J. 269, 495 A.2d 376 (1985) (remanding case to agency, despite constitutional issues, when resolution of issues was fact-sensitive and required agency expertise). The court has discretion to waive the exhaustion requirement as required by the interest of justice. Ward v. Keenan, 3 N.J. 298, 70 A.2d 77 (1949) (police officer who had been suspended was required to exhaust administrative remedies). However, the interest of justice is ordinarily best served by requiring the plaintiff to ﬁrst exhaust administrative remedies; it is only in special circumstances that the interest of justice will require otherwise. 21st Century Amusements, Inc. v. D’Alessandro, 257 N.J. Super. 320, 608 A.2d 438, (App. Div. 1992) (when construction official declined to issue certiﬁcate of occupancy, plaintiff was required to appeal to Board of Adjustment). Exhaustion of remedies is not required under the following circumstances: 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 judicial action. 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 Because Issue Is Purely Question of Law Exhaustion of administrative remedies is not required if the issue to be decided is purely a question of law, for which administrative expertise is unnecessary. Matawan v. Monmouth County Bd. of Taxation, 51 N.J. 291, 296 - 297, 240 A.2d 8 (1968) (borough challenging application and constitutionality of statute apportioning tax burden for school funding not required to exhaust administrative remedies). When an issue is purely legal, the court must make its decision de novo. and may not defer to the administrative agency. Aparin v. County of Gloucester, 345 N.J. Super. 41, 783 A.2d 271 (Law Div. 2000) (issue of whether civil service job speciﬁcations created enforceable legal rights was purely legal). If the resolution of a contested legal issue properly brought before a 0021 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:08 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

11-21 ACTIONS IN LIEU OF PREROGATIVE WRITS § 11.10[7]

court necessarily turns on factual issues within the special province of an administrative agency, the court should refer the factual issues to that agency. The trial court should accept the factual determinations of the agency and lay them against the legal issues to be resolved and enter its ﬁnal judgment resolving the mixed questions of law and fact based upon the agency fact ﬁnding. Boss v. Rockland Electric Co., 95 N.J. 33, 468 A.2d 1055 (1983) (involving challenge to right-of-way maintenance).

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

[6] Determining Whether Exhaustion of Administrative Remedies Is Unnecessary Because Enactment Is Challenged as Facially Unconstitutional Judicial review, without exhaustion of administrative remedies, is appropriate when an ordinance or regulation is challenged as unconstitutional on its face. However, when there is an allegation that an ordinance is unconstitutional as applied and factual ﬁndings are required, administrative review is appropriate to develop a factual record. If an ordinance is challenged both on its face and as applied, the court may determine the facial challenge and, if the ordinance is facially valid, order the plaintiffs to exhaust their administrative remedies. Brunetti v. Borough of New Milford, 68 N.J. 576, 350 A.2d 19 (1975) (court could decide facial challenge to rent control ordinance but plaintiffs were required to exhaust their administrative remedies before court would consider challenge to ordinance as applied).

[7] Determining Whether Administrative Remedy Would Be Futile Administrative remedies need not be exhausted if it is apparent that it would 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 was not required to exhaust administrative remedies within union; other plaintiffs in action had done so unsuccessfully). 0022 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:08 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

§ 11.11[1] NEW JERSEY PLEADINGS 11-22

§ 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 There is broad standing to challenge both quasi-judicial and quasi- legislative agency and municipal actions. An action in lieu of prerogative writs may be brought by a person who was a direct party to proceedings before an administrative agency, as well as by any other person whose interests have been affected by the action sought to be challenged. All that is required for standing is a substantial likelihood that the plaintiff will suffer some harm in the event of an adverse decision. As a general rule, any person who has suffered any ﬁnancial detriment as a result of agency action has standing to challenge that action in court. In re Camden County, 170 N.J. 439, 790 A.2d 158 (2002) (county had standing to appeal disability determination by Public Employees Retirement System, because county had contractual obligation to pay substantial portion of beneﬁt costs). If the case involves a substantial public interest, a person has standing to bring an action in lieu of prerogative writs if he or she has merely a slight private interest. Elizabeth Fed. Sav. & Loan Ass’n v. Howell, 24 N.J. 488, 132 A.2d 779 (1957) (banks’ private interest, when coupled with public interest in preventing failure of banking institutions, was sufficient to confer standing to challenge approval of merger of their competitors).

[2] Determining Whether Client Has Standing as Citizen and Taxpayer The courts have recognized a broad right of citizens and taxpayers to seek review of local judicial or legislative action without proof of unique ﬁnancial 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 limited to, the following: 1. Zoning matters, both quasi-judicial and legislative. Kozesnik v. Montgomery, 24 N.J. 154, 131 A.2d 1 (1957) (community-at-large has interest in integrity of zoning plan sufficient to justify attack on validity of entire zoning district). 2. Cases involving misfeasance, malfeasance, or corruption of local 0023 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:09 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

11-23 ACTIONS IN LIEU OF PREROGATIVE WRITS § 11.11[3]

officials. Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 86 A.2d 201 (1952) (citizen may bring suit to enforce obligation of public official to act with honesty and good faith). 3. Cases challenging the legality of bidding procedures for contracts for public services. K. S. B. Technical Sales Corp. v. North Jersey Dist. Water Supply Com., 75 N.J. 272, 381 A.2d 774 (1977) (taxpayer had standing to challenge legality of provisions in water district’s bidding speciﬁcations). 4. Cases challenging wrongful expenditures of public funds. Theurer v. Borrone, 81 N.J. Super. 188, 195 A.2d 215 (Law Div. 1963) (taxpayer had standing to bring action to prevent payment of pay raises approved by referendum, when there were allegations of voting fraud in connection with referendum). However, a citizen does not have an unlimited right to challenge official action. For example, a citizen does not have standing to enforce a contract provision that would compel the expenditure of public funds, if the citizen is not a party to the contract. Loigman v. Middletown Tp., 297 N.J. Super 287, 687 A.2d 1091 (App. Div. 1997) (taxpayer could not bring action to enforce public sector labor agreement).

[3] Determining Whether Party Has Standing to Challenge Regulation A party may have standing to challenge an ordinance or regulation, even if the party failed to participate in the rulemaking process or failed to register a timely objection. In such cases, the party has standing to bring a facial constitutional challenge or to attack the authority of the agency to enact 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 activists had standing to challenge COAH’s interim certiﬁcation of municipality’s Mount Laurel compliance). The party may not, however, attack the legislation based on evidence that it could have presented during the rulemaking process. Cf. Bergen Pines County Hospital v. New Jersey Dep’t of Human Services, 96 N.J. 456, 476 A.2d 784 (1984) (hospital could not challenge agency’s rules adopted according to Administrative Procedure Act; hospital failed to raise objections or present evidence during rulemaking process). 0024 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:09 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

§ 11.11[4] NEW JERSEY PLEADINGS 11-24

[4] Determining Whether Association Has Standing to Bring Action An association of individuals who allegedly have suffered ﬁnancial harm as 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 Commissioner of Banking and Insurance approving acquisition of health care insurance provider by another provider, because acquisition could have adverse impact on doctors’ compensation).

[5] Determining Whether Local Governing Body Has Standing to Bring Action A county or local governing body does not have standing to challenge the actions of a government agency on the sole ground that it represents the public and is protecting public interests. However, a governing body has standing if there is a substantial likelihood that it will suffer ﬁnancial detriment in the event of an adverse decision. In re Camden County, 170 N.J. 439, 790 A.2d 158 (2002) (county had standing to appeal disability determination by Public Employees Retirement System because county had contractual obligation to pay substantial portion of beneﬁt costs). 0025 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:09 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

11-25 ACTIONS IN LIEU OF PREROGATIVE WRITS § 11.12

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

§ 11.12 CHECKLIST: Determining Period in Which Action in Lieu of Prerogative Writs Must Be Brought □ Determine whether any of the following exceptions to general rule that 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 improvement. Action to review determination of a planning board or board of adjustment. Action to review ordinance authorizing siding or for a public improvement. Action in relation to joint sewer or disposal plant. Action to review decision of a board of chosen freeholders regarding 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 of contract. Action to review resolution or ordinance authorizing issuance of 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 administrative agency; time period does not begin to run until agency review is completed. Authority: N.J. Ct. R. 4:69-6(b)(1) - (11). 0026 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:09 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

§ 11.12 NEW JERSEY PLEADINGS 11-26

Discussion: See §§ 11.13, 11.14, 11.15 below. □ Determine when to bring action to challenge action by planning board or zoning board. Challenge denial or modification of application within 45 days of first publication or mailing of notice to applicant, whichever is later. Challenge to other actions by planning board or zoning board must be brought within 45 days of first publication of action in newspaper. Ascertain date notice of action is first published, by either agency or applicant. Determine whether published notice meets requirements for valid notice under N.J. Ct. R. 4:69-6(b)(3). Disregard as irrelevant date zoning ordinance is filed with county 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 of Atlantic 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 required by interest of justice. Determine whether enlargement should be granted because case falls within judicially-created exception to limitations period. Determine whether case involves important and novel constitutional questions. Determine whether case involves a challenge to informal or ex parte determinations of legal questions by administrative offi- 0027 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:09 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

11-27 ACTIONS IN LIEU OF PREROGATIVE WRITS § 11.13[1]

cials. Determine whether case involves important public interests that require adjudication or clariﬁcation. Determine whether case involves continuing violation of public rights, such as payments of regular salary to illegally-appointed official. Determine whether enlargement is otherwise required by interest of justice. Consider, for example, whether government official or agency failed to disclose facts that would have led to a timely challenge. Remember that the longer the delay, the less willing the court will 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). Discussion: See § 11.16 below.

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

[1] Commence Action Within 45 Days of Accrual of Right to Review, Hearing or Relief In general, an action in lieu of prerogative writs must be commenced no later than 45 days after the accrual of the right to the review, hearing or relief claimed. N.J. Ct. R. 4:69-6(a). However, if there is a right to administrative review, and the plaintiff avails himself or herself of that right, the prescribed time limit does not begin to run until the conclusion of administrative review. Schack v. Trimble, 28 N.J. 40, 49, 145 A.2d 1 (1957) (party who diligently pursues administrative remedy has not slumbered on his or her rights and should not be barred from bringing action in lieu of prerogative writs). The time limits for bringing an action in lieu of prerogative writs do not apply when the relief sought is in the nature of mandamus, to compel a public body to perform an act that it allegedly has a continuing duty to perform. Lettieri v. State Bd. of Medical Examiners, 24 N.J. 199, 131 A.2d 0028 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:09 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

§ 11.13[2] NEW JERSEY PLEADINGS 11-28

518 (1957) (agency had continuing duty to grant plaintiff his medical license after he had fulﬁlled all requirements); Yanuzzi v. Mayor & Council of Spring Lake, 22 N.J. 567, 126 A.2d 873 (1956) (action in lieu of prerogative writs to compel municipality to install sewer mains). There are special rules applicable to particular types of actions, with which counsel should be familiar. These rules are discussed in § 11 - 14 below. 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). Principles governing 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 could have been sought in a prerogative writ action. However, failure to bring an action in lieu of prerogative writs within the applicable time period is not fatal to those aspects of the complaint that are outside the scope of the traditional 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.2d 1141 (App. Div. 1994) (although action in lieu of prerogative writ was time-barred, plaintiffs could proceed on those aspects of their claims that could not have been raised in action in lieu of prerogative writ).

t Warning: In cases where the limitation period is 45 days from publication but it is unlikely that publication will occur, the action should be ﬁled within 45 days from the time it is no longer reasonable to 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 Applies to 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 for approval 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). 0029 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:10 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

11-29 ACTIONS IN LIEU OF PREROGATIVE WRITS § 11.14[3]

[2] Bringing Action to Review Assessment or Award for Municipal Improvement An action in lieu of prerogative writs to review an assessment or award made for any municipal improvement must be brought within 30 days from the 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 assessment, any assessment made under the ordinance may be challenged even after it is too late to attack the ordinance itself, and even though the attack may implicate the validity of the ordinance itself. Rutan Estates v. Belleville, 56 N.J. Super. 330, 152 A.2d 853 (App. Div. 1959) (action challenging assessment for sewer mains timely, although landowner failed to challenge ordinance authorizing assessment). The statutory procedure for challenging assessments must be followed if the assessment is attacked as merely excessive. However, an action in lieu of prerogative writs may be brought without following the statutory procedure if there is a claim that the fundamental rights of property owners have been violated or the enabling statute or ordinance upon which the assessments were based was unconstitutional. Holloway v. Pennsauken Township, 12 N.J. 371, 97 A.2d 141 (1953) (statutory procedure must be followed if assessment attacked as merely excessive). Accordingly, a property owner who is merely challenging an assessment as excessive must follow the statutory procedure, which provides that an assessment may be appealed to the Superior Court. In all municipalities other than first class cities, a written notice of appeal must be served on the tax collector and the clerk within 30 days of the confirmation of the assessment. 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 barred because property owners failed to provide timely written notice of appeal to Tax Collector and Township Clerk).

[3] Challenging Planning Board Determinations An action to review a determination of a planning board or a zoning board of adjustment must be brought no later than 45 days after notice of the determination has been published in either the official newspaper of the municipality or a newspaper of general circulation in the municipality. If the determination results in a denial or modiﬁcation of an application, the action must be brought no later than 45 days from the publication of the notice or the mailing of the notice to the applicant, whichever is later. The 0030 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:10 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

§ 11.14[3] NEW JERSEY PLEADINGS 11-30

same rule applies to an action to review a resolution by the governing body or board of public works of a municipality to approve or disapprove a recommendation 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 of publication was timely, despite earlier adoption of similar resolution at non-conforming public meeting). The publication may be made by either the applicant or the agency. NJS 40:55D-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 publication 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 or resolution. The notice must also state that the determination or resolution has been filed in the office of the board or the municipal clerk and is available 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, 689 A.2d 865 (Law Div. 1995) (notice stating that “resolution . . . is or will shortly be on file” did not satisfy notice requirements, when resolution had not been drafted at time notice was published). The 45-day period begins to run from the date of publication, even if the adopted resolution has not been formally drafted in final form at the time of publication. Cohen v. Thoft, 368 N.J. Super. 338, 845 A.2d 1281 (App. Div. 2004) (publication was valid, although ministerial task of drafting resolution in final form had not yet been performed). However, the 45-day period does not begin to run unless there is a written determination or resolution available for inspection, and the resolution must be sufficient to inform interested parties of the basis for the decision from which an appeal may be taken. Island Club Condo. Homeowners Ass’n v. City of Atlantic City, 298 N.J. Super. 516, 689 A.2d 865, (Law Div. 1995) (publication of site plan approval three weeks prior to drafting of memorializing resolution did not trigger 45-day period). The date a zoning ordinance is filed with the county planning board is irrelevant for purposes of determining the limitations period. Faulhaber v. Township Comm., 274 N.J. Super. 83, 643 A.2d 52 (Law Div. 1994) (action was untimely when it was commenced within 45 days of date ordinance was filed with planning board but 10 months after publication). As a general rule, a zoning board’s determination is a final appealable 0031 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:10 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

11-31 ACTIONS IN LIEU OF PREROGATIVE WRITS § 11.14[6]

decision, notwithstanding the fact that the developer may still be required to apply for a site plan or conditional use approval for the same development. Adams v. DelMonte, 309 N.J. Super. 572, 707 A.2d 1061 (App. Div. 1998) (zoning board’s determination that sewage tank cleaning business was “home occupation” was ﬁnal appealable decision, despite fact that planning board had not yet issued conditional use permit to landowner). Therefore, the right to challenge the zoning board’s determination accrues upon publication of the determination, even if further permits 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 improvement in any municipality must be brought within 30 days of the date the ordinance was passed or the resolution was adopted. The 30-day limit also applies to an action to review an ordinance authorizing the construction of a 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 be brought 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 or disposal plants must be brought within 30 days of the date of the taking of the proceeding sought to be reviewed, or after the lapse of 30 days from the entry 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 of Highway An action to review any decision of a board of chosen freeholders refusing or granting a permit to erect a building in the bed of any highway must be brought no later than 30 days from the ﬁling of the decision in the office of the board. See NJS 40:27-6 (pertaining to permits to erect building in bed of highway). 0032 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:10 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

§ 11.14[7] NEW JERSEY PLEADINGS 11-32

[7] Bringing Action Under In Rem Tax Foreclosure Act An action under the In Rem Tax Foreclosure Act (NJS 54:5-104.29 et seq.) must be filed within two months from the filing of an answer denying the validity of the tax lien for which the lands were sold and certificate issued, or denying the legality of the proceedings to sell the lands, or denying 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 a sale where assessments and taxes have been included together, must be brought within 18 months of the date of the sale. This limitation does not apply to proceedings taken after the sale by the purchaser or holder of the tax 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 sale certificate, notice and affidavit of service recorded as a deed, must be brought 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 is presumptive evidence of truth of statements therein and regularity of proceedings and that such presumption becomes irrebuttable after two years).

[10] Bringing Action to Review Ordinance Authorizing Notes or Bonds An action to review any resolution or ordinance authorizing a municipality or other political subdivision to issue notes or bonds must be brought within 20 days of the date of the ﬁrst publication of the resolution or ordinance following its ﬁnal passage. N.J. Ct. R. 4:69-6(b)(11). See Gallo v. 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 enlarged in interests of justice).

§ 11.15 Using Prerogative Writ to Void Action Taken at Nonconforming Public Meeting Any action taken by a public body at a meeting that does not comply with the requirements of the Open Public Meeting Act (OPMA) (NJS 0033 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:10 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

11-33 ACTIONS IN LIEU OF PREROGATIVE WRITS § 11.16

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 action is made public. NJS 10:4-15. If an action was taken at a meeting whose existence was not disclosed and whose results were not published, the 45-day period begins to run upon discovery of the violation. Estate of Dolente 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 meeting whose existence was undisclosed). If the 45 day period for challenging an action taken at a nonconforming public meeting has run, the action may still be challenged if there is still time available under N.J. Ct. R. 4:69-6. For example, if a planning or zoning board’s action is being challenged on substantive grounds, rather than merely on the grounds of noncompliance with the OPMA, the limitations period does not begin to run until after publication of the board’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 of publication was timely, despite earlier adoption of similar resolution at non-conforming public meeting). If an action that is potentially voidable under the OPMA is later ratified at a public meeting that conforms with the OPMA, the limitations period is measured from the date of the ratified action and not the original action. For example, if an arguably voidable zoning ordinance is subsequently ratified at a conforming public meeting, the limitations period for challenging the ordinance begins to run on the date the ratified ordinance is published. 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 Prerogative Writs The court may enlarge the time limit for bringing an action in lieu of prerogative 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 the following: 1. Important and novel constitutional questions; or 2. Informal or ex parte determinations of legal questions by administrative officials; or 3. Important public interests that require adjudication or clariﬁcation. 0034 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:10 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

§ 11.16 NEW JERSEY PLEADINGS 11-34

Brunetti v. Borough of New Milford, 68 N.J. 576, 350 A.2d 19 (1975) (action challenging rent control ordinance involved important constitutional issue). An enlargement of time may also be justified if the challenged action could result in a continuing violation of public rights. Borough of Princeton v. Bd. of Chosen Freeholders of Mercer County, 169 N.J. 135, 152, 777 A.2d 19 (2001) (enlargement granted in challenge to solid waste contracts, which had not been bid publicly and which exceeded statutory public contract duration limits by 10 years). For example, a continuing violation of public rights may exist when public office is held illegally, or when successive payments are made under a contract challenged as illegal. Jones v. MacDonald, 33 N.J. 132, 162 A.2d 817 (1960) (limitations period did not apply to challenge to dual officeholder, when each exercise of his right to hold office was “a fresh wrong”); Meyers v. Mayor and Council of the Borough 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 position constitute 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 prerogative writs 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’s decision that enterprise was home occupation did not emerge until planning board hearing conducted seven months later). In considering whether to grant an enlargement of time, the court may also consider whether the defendant has suffered any prejudice by reason of the delay in bringing the action. Cohen v. Thoft, 368 N.J. Super. 338, 845 A.2d 1281 (App. Div. 2004) (although neighbor’s action challenging variance was not brought within 45 days after first publication by homeowner, enlargement was proper when, under the circumstances, both agency and plaintiff reasonably believed agency’s later publication was first publication); East Rutherford Industrial Park, Inc. v. State, 119 N.J. Super. 352, 360, 291 A.2d 588 (Law Div. 1972) (in case involving three consolidated actions, minimal prejudice would result from enlarging time to bring one action, when other two actions were timely). A party’s ignorance of the existence of a cause of action will not prevent the running of a period of limitations, unless there has been concealment or a failure to make a required disclosure of the underlying facts. Reilly v. 0035 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:11 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

11-35 ACTIONS IN LIEU OF PREROGATIVE WRITS § 11.16

Brice, 109 N.J. 555, 559, 538 A.2d 362 (1988) (enlarging time to challenge public contract, when municipality failed to adequately describe action in either its published agenda or minutes). A court must exercise its discretion in determining whether or not to grant an enlargement. The court is required to consider the potential impact upon the public body, the plaintiff, and any others whose rights may be affected by the action. In addition, the court should also consider the length of the delay and the reason proffered for that delay. The longer a party waits to 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 not warranted). However, a court may grant a very substantial enlargement of time to give affected parties an opportunity to challenge an alleged unlawful government action. See, e.g., Borough of Princeton v. Bd. of Chosen Freeholders of Mercer County, 169 N.J. 135, 777 A.2d 19, (2001) (enlarging time by nine years in action involving solid waste disposal contracts); 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 action challenging zoning ordinance as impermissibly vague). A court’s decision to enlarge the time period must be supported by ﬁndings on the record. N.J. Shore Builders Assoc. v. South Brunswick, 325 N.J. Super. 412, 739 A.2d 956 (App. Div. 1999) (judge’s conclusory statement that enlargement was justiﬁed by novel constitutional issues was unsupported by record). 0036 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:11 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

§ 11.17 NEW JERSEY PLEADINGS 11-36

PART IV: BRINGING AN ACTION IN LIEU OF PREROGATIVE WRITS

§ 11.17 CHECKLIST: Bringing an Action in Lieu of Prerogative Writs □ Determine whether stay or other temporary relief is required. Ascertain whether client will suffer irreparable harm if temporary relief is not granted. For example, a preliminary injunction may be needed to prevent the municipality from enforcing an illegal law. Request temporary relief without notice, if client will suffer “immediate and irreparable danger” before hearing can be conducted. □ Prepare order to show cause or notice of motion, brief in support of motion, and supporting affidavits establishing following required elements: 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 on defendants. □ File and serve moving papers with complaint or at any time thereafter. Authority: N.J. Ct. R. 4:69-3, 4:52-1. Forms: Form CLL 11.1117.01, Motion Seeking Stay of Adminis- trative Proceeding Discussion: See § 11.18 below. □ Comply with requirements for drafting, ﬁling and service of complaint. Draft complaint in accordance with general principles for drafting complaint. Designate complaint “in Lieu of Prerogative Writs.” 0037 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:11 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

11-37 ACTIONS IN LIEU OF PREROGATIVE WRITS § 11.17

Prepare certiﬁcation that transcript of relevant agency proceedings 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 That Transcripts Have Been Ordered Discussion: See § 11.19 below. □ Prepare summons in accordance with form prescribed by court. Authority: N.J. Ct. R. 4:1. Discussion: See § 11.19 below. □ Effect service of summons, together with copy of complaint, upon defendant. 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 of public 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 of prerogative writs, and must be conducted within 30 days after joinder. Prepare statement of factual and legal issues and exhibit list 0038 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:11 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

§ 11.17 NEW JERSEY PLEADINGS 11-38

and submit to managing judge at least ﬁve days before conference. 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 Legal Issues for Preliminary Conference Form CLL 11.1117.05, Cover Letter for Statement of Factual and Legal Issues for Preliminary Conference Discussion: See § 11.20 below. □ Determine whether court may decide matter on motion for summary judgment. Consider bringing summary judgment motion in actions in which review of administrative record is either not necessary or not possible, for example, action brought to compel performance of ministerial duty, or action challenging municipal ordinance. Understand that motion for summary judgment is inappropriate in action challenging decision made after evidentiary hearing and based on ﬁndings of fact. Authority: N.J. Ct. R. 4:69-2; Hirth v. City of Hoboken, 337 N.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). Discussion: See § 11.21 below. □ 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 in support of motion. 0039 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:11 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

11-39 ACTIONS IN LIEU OF PREROGATIVE WRITS § 11.18[2]

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

Discussion: See § 11.21 below. □ File and serve motion for summary judgment. File motion at any time after ﬁling complaint in action demanding performance of ministerial act or duty. File motion at least 35 days after ﬁling complaint in any action other than one demanding performance of ministerial act or duty. Authority: N.J. Ct. R. 4:69-2, 4:46-1. Forms: Form CLL 11.1117.06, Notice of Motion for Summary Judgment Discussion: See § 11.22 below.

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

[1] Applying for Preliminary Injunction to Stay Enforcement of Ordinance The gravamen of an action in lieu of prerogative writs is that a government 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 temporary relief. N.J. Ct. R. 4:69-3. The plaintiff may apply for temporary relief at the time the complaint is ﬁled or later. Application is made for order to show cause or motion supported by affidavit, accompanied by briefs. The court may grant relief with 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 ordinance or 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; 0040 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:11 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

§ 11.18[3] NEW JERSEY PLEADINGS 11-40

3. The material facts are not in dispute; and 4. Granting the preliminary injunction will not inﬂict undue hardship on 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 ordinance requiring license to place newsracks on street, when denying injunction would result in removal of newsracks and interfere with circulation of newspaper).

z Strategic Point: Although N.J. Ct. R. 4:69-3 provides for interim relief in actions in lieu of prerogative writ, the substantive criteria governing injunctive relief will be applied to establish entitlement to that relief. Crowe v. DeGoia, 90 N.J. 126, 447 A.2d 173 (1982); News Printing 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 from speciﬁc facts shown by affidavit or veriﬁed complaint that the plaintiff will suffer “immediate and irreparable damage” before notice can be served and a hearing conducted. N.J. Ct. R. 4:69-3, 4:52-1.

Exception: In actions in lieu of prerogative writs, applications for ex parte 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, Final Remedies and Special Proceedings Requirements). Forms: Form CLL 11.1117.01, Motion Seeking Stay of Administrative Proceeding 0041 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:12 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

11-41 ACTIONS IN LIEU OF PREROGATIVE WRITS § 11.19[2]

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

[1] Drafting Complaint A complaint in lieu of prerogative writs must meet the general requirements for ﬁrst pleadings. See N.J. Ct. R. 4:5-1(b). The complaint must bear the designation “in Lieu of Prerogative Writs.” N.J. Ct. R. 4:69-1. Under the entire controversy doctrine, any other claims arising out of the same 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 joined in the action. Garrou v. Teneck Tyron Co., 11 N.J. 294, 305 (1953) (joinder of equitable claim for injunction with claim in lieu of prerogative writs permissible).

z Strategic Point: In variance cases, counsel should be mindful that a denial of a variance is entitled to greater deference than the granting of a variance. Omnipoint v. Board of Adjustment of Township of Bedminster, 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 a complaint 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. Court Directive # 2-01. The filing of the complaint must be accompanied by a certification that all necessary transcripts of local agency proceedings in the cause have been ordered. N.J. Ct. R. 4:69-4.

z Strategic Point: Contract, tort or other claims joined with actions in lieu 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 Tort Claims 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 0042 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:12 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

§ 11.19[3] NEW JERSEY PLEADINGS 11-42

prerogative writs at 45 days).

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

[3] Serving Complaint The rules governing service and summons in civil actions in the Law Division 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 presiding officer 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 action predicated on a factual record, counsel should argue the substantial evidence rule standard which requires the courts to disturb such action where it is arbitrary, capricious or unreasonable. Cell South of New Jersey, 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 in Lieu of Prerogative Writs Preliminary case conferences are conducted in all actions in lieu of prerogative writs. N.J. Ct. R. 4:69-4. The managing judge is required to conduct the conference within 30 days after joinder for the purpose of expediting the disposition of the action. The conference may be conducted either in chambers or by telephone. N.J. Ct. R. 4:69-4. Each party must submit a statement of factual and legal issues and an exhibit 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 legal disputes, to mark exhibits and to establish a brieﬁng schedule. Whether 0043 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:12 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

11-43 ACTIONS IN LIEU OF PREROGATIVE WRITS § 11.20

discovery will be permitted, the scope of such discovery, and the time in which 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 at the conference, if feasible. The conference also provides an opportunity to answer any questions about the record, including what parts of the record are relevant to the issues to be determined. Willoughby v. Planning Board of Township of Deptford, 306 N.J. Super. 266, 703 A.2d 668 (App. Div. 1997) (summary judgment is inappropriate in most actions in lieu of prerogative writs because expedited procedure already exists). Actions in lieu of prerogative writs are assigned to Track IV to ensure management by an individual judge . N.J. Ct. R. 4:69-4; Supreme Court Civil Part Best Practices, December 2004, p.8. Ordinarily, Track IV cases have a discovery period of 450 days. By contrast, the discovery period, if any, in an action in lieu of prerogative writs is to be determined by the managing 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 prohibit the parties from initiating discovery nor expressly suspend the Rules governing discovery, the managing judge must set the scope and timing of any discovery at the mandatory case management conference. Therefore, while counsel should promptly initiate discovery, counsel must justify the discovery sought to the court at the initial case conference. Furthermore, while a Track IV assignment provides for a 450-day discovery period (N.J. Ct. R. 4:24-1(a)), the requirements of establishing a briefing schedule and marking of exhibits at the initial conference reflects the New Jersey Supreme Court’s intent to substantially abbreviate that discovery period. N.J. Ct. R. 4:69-4.

Forms: Form CLL 11.1117.04, Statement of Factual and Legal Issues for Preliminary Conference Form CLL 11.1117.05, Cover Letter for Statement of Factual and Legal Issues for Preliminary Conference 0044 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:12 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

§ 11.21[1] NEW JERSEY PLEADINGS 11-44

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

[1] Moving for Summary Judgment When Agency Record Is Available for Judicial Review As a general rule, summary judgment is inappropriate in actions in lieu of prerogative writs that challenge a decision made after a plenary hearing conducted before an agency, in which factual findings have been made on the record. In such cases, the court must make its decision based solely on a review of the agency record. The court must affirm the agency’s decision if the agency’s factual findings are based on substantial evidence and its exercise of discretion was not arbitrary and capricious. Early resolution of these cases can be had through the established procedure of filing briefs and oral argument after submission of the agency record. Thus, summary judgment is not only inappropriate but unnecessary. Willoughby v. Planning Board of Township of Deptford, 306 N.J. Super. 266, 703 A.2d 668 (App. Div. 1997) (trial court should have refused to consider defendant’s summary judgment motion as to portion of plaintiff’s complaint challenging grant of site-plan approval). But see Institute for Evaluation & Planning v. Board of Adjustment, 270 N.J. Super. 396, 637 A.2d 235 (Law Div. 1993) (granting summary judgment to plaintiff in action challenging zoning board’s denial of plaintiffs’ application to operate group home for girls). Notwithstanding this rule, summary judgment may be sought by a defendant who contends that the action was filed after the time allowed by N.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 summary judgment motion based on untimeliness of complaint in action in lieu of prerogative writs); Hirth v. City of Hoboken, 337 N.J. Super. 149, 766 A.2d 803 (App. Div. 2001) (claim that plaintiff lacked standing to challenge blight determination and redevelopment plan was purely legal claim that could be brought on motion for summary judgment).

Exception: In action in lieu of prerogative writs, summary judgment is appropriate and should be sought where there is no record below to support contested administrative action. Mitchell v. City of Somers 0045 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:12 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

11-45 ACTIONS IN LIEU OF PREROGATIVE WRITS § 11.21[3]

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

[2] Moving for Summary Judgment to Compel Performance of Ministerial Act If the action is brought to compel the performance of a ministerial act or duty, the plaintiff may move for summary judgment at any time after ﬁling the 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 summary judgment to plaintiff park rangers in action to compel county to provide them with required police training courses).

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

[3] Moving for Summary Judgment in Action Challenging Municipal Ordinance Either party may move for summary judgment if the prerogative writ action challenges a municipal ordinance. See, e.g., Mitchell v. City of Somers 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-time tax assessor challenging municipality’s decision to make tax assessor position full-time). Evidentiary hearings are not usually conducted before an ordinance is enacted, and ordinances are not ordinarily based on ﬁndings of fact. When there are no ﬁndings of fact for the court to review, and resolution of the action depends on disputed factual issues, the case proceeds in the same manner as other civil litigation. In such cases, there is an opportunity for discovery and pretrial motions, including a motion for summary judgment. Hirth v. City of Hoboken, 337 N.J. Super. 149, 766 A.2d 803 (App. Div. 2001) (city moving for summary judgment failed to show absence of any disputed material fact concerning challenged redevelopment plan). 0046 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:12 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

§ 11.22[1] NEW JERSEY PLEADINGS 11-46

§ 11.22 Moving for Summary Judgment in Action in Lieu of Prerogative Writs

[1] Preparing Summary Judgment Motion A motion for summary judgment must be supported by a brief and must be accompanied by a statement of undisputed facts, with citations to the supporting evidence in the motion record. The party may also choose to submit affidavits in support of the motion. N.J. Ct. R. 4:46-2(a). Affidavits are required in a summary judgment motion in an action to demand the performance 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 prerogative writs has the same burden as any other civil litigant moving for summary judgment. The party must establish that there is no genuine issue of material 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 the performance of a ministerial act or duty at any time after ﬁling the complaint. N.J. Ct. R. 4:69-2. Otherwise, a plaintiff must wait until 35 days after 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 alternatively seek remand if an incomplete administrative record arguably precludes review because remand is required under such circumstances. Scardigli v. Borough of Haddonﬁeld, 300 N.J. Super. 314, 692 A.2d 1012 (App. Div. 1997).

Forms: Form CLL 11.1117.06, Notice of Motion for Summary Judgment 0047 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:13 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

11-47 ACTIONS IN LIEU OF PREROGATIVE WRITS § 11.24

PART V: APPEALING INTERLOCUTORY ORDER OF AGENCY OR OFFICER

§ 11.23 CHECKLIST: Appealing Interlocutory Order of Agency or Officer □ Determine whether to seek leave to appeal interlocutory order. Consider that decision to grant review is within sole discretion of Law Division. Consider that interlocutory review is granted only when required by interests of justice. Consider that no prejudice results from either failure to seek review 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, 849 A.2d 204 (App. Div. 2004). Discussion: See § 11.24 below. □ Prepare, ﬁle and serve necessary papers to seek leave to appeal interlocutory 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 to determining motion. File notice of motion, brief, affidavits, and agency record with court within 20 days after entry of order being appealed. Serve copies of moving papers on opposing party at least 10 days before return date. Authority: N.J. Ct. R. 4:69-7, 3:24(a), 3:24(c). Discussion: See § 11.25 below.

§ 11.24 Determining Whether Interests of Justice Merit Interlocutory Appeal If a ﬁnal decision or action of an agency or officer may be reviewed by 0048 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:13 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

§ 11.25 NEW JERSEY PLEADINGS 11-48

means of an action in lieu of prerogative writ, a party may also seek review of an interlocutory order of the agency or officer. N.J. Ct. R. 4:69-7. An interlocutory order is an order that does not ﬁnally determine a cause of action, but only decides some intervening matter pertaining to the cause of action. Moon v. Warren Haven Nursing Home, 182 N.J. 507, 867 A.2d 1174 (2005) (interlocutory order requires further steps to enable the court to adjudicate cause on its merits). To obtain interlocutory review, the aggrieved party must apply to the court for leave to appeal the interlocutory order. N.J. Ct. R. 4:69-7. It is within the Law Division’s sole discretion to grant or deny leave to appeal an interlocutory order. Interlocutory review is granted only in extraordinary circumstances, in the interests of justice. See Edwards v. McBreen, 369 N.J. Super. 415, 849 A.2d 204 (App. Div. 2004) (discussing court’s discretion to 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 action brought under Tort Claims Act). The denial of interlocutory review does not prejudice review of the same order in a later appeal. State v. Reldan, 100 N.J. 187, 495 A.2d 76 (1985) (discussing interlocutory appeals in criminal context). Likewise, failure to seek interlocutory review of an order does not affect the court’s power to review 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 is the same procedure used to appeal an interlocutory order of a court of limited 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 an interlocutory order entered by an administrative agency. A notice of motion for leave to appeal the interlocutory order must be ﬁled within 20 days after the order is entered, and a copy of the notice must be served on the opposing 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 and cannot 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 have discretion to consider untimely application to appeal interlocutory order). The notice of motion must be accompanied by a brief and by copies of 0049 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:13 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0

11-49 ACTIONS IN LIEU OF PREROGATIVE WRITS § 11.25

all papers of record and any affidavits essential to the determination of the motion. N.J. Ct. R. 3:24(c). Notice of the application must be given by the party 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 interlocutory order on terms. The court may grant the motion and simultaneously decide the appeal on the merits on the papers before it. Alternatively, it may direct the ﬁling of additional briefs or make such other order as it deems appropriate for the expeditious disposition of the matter. A copy of any order or judgment entered by it shall be promptly transmitted to the agency. N.J. Ct. R. 3:24-1 et seq. 0050 XPP 7.3C.1 Patch #3 SPEC: SC_01444: nonLLP: 1446: XPP-PROD Mon Oct 23 17:03:13 2006 [ST: 1] [ED: 10000] [REL: 2007] VER: [SC_01444-Local:23 Oct 06 17:02][MX-SECNDARY: 03 Oct 06 14:42][TT-TT000001: 30 Aug 06 13:14] 0