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 preroga- tive writs. • Practices and procedures for obtaining interlocutory relief. § 11.02 Objective and Strategy The purpose of this chapter is to provide the practitioner with a 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. ⅜ Determine whether action challenges action or inaction of local government agency, government official, or municipality. ⅜ 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. ⅜ 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. ⅜ Consider that writ of mandamus was used to compel govern- ment agency or official to perform duty, but could not dictate manner in which duty was performed.