Mullen v. The Ippolito Corporation, A-5823-10T3; Appellate Division; opinion by Fuentes, P.J.A.D.; decided and approved for publication September 10, 2012. Before Judges Fuentes, Graves and Koblitz. On appeal from the Law Division, Ocean County, L-3579-09. [Sat below: Judge Gizinski.] DDS No. 26-2-7634 [33 pp.]

Plaintiffs John Mullen and Howard Levine own a one-family house in an area of Point Pleasant Beach that is zoned exclusively for low-density residential use. Their residence is adjacent to the Driftwood Motel, a pre-existing nonconforming use owned and operated by defendant Ippolito Corporation, the principals of which are defendants Samuel and Paul Ippolito.

Over the past 13 years, plaintiffs have complained to municipal officials that the Ippolitos were expanding the Driftwood’s business operations and the property’s physical footprint in violation of applicable zoning restrictions, municipal housing and construction codes, and dune-protection ordinances. Plaintiffs allege that municipal officials ignored their numerous complaints and failed to take any corrective or enforcement action against the Ippolitos.

Plaintiffs have offered evidence that the snack bar area was increased, the motel expanded its impervious surface area by replacing the wood plank boardwalk with a concrete patio, additional rooms and outdoor restrooms were added, parking was increased, and that the motel’s deck and pool area were expanded, all without permits. They also allege that the borough dune ordinance does not have an enforcement mechanism and the dune inspector is only a volunteer. Plaintiffs aver that motel employees have allowed unlimited access to the beach through the dunes and have regraded the dunes in violation of CAFRA regulation and the borough’s dune ordinance.

Unable to get relief from the municipality, plaintiffs filed suit seeking, inter alia, mandamus relief against the borough, zoning officer Elaine Petrillo, construction official Michael Gardner and Maryann Ellsworth, the official responsible for enforcing the borough’s dune ordinance.

The trial court granted the municipal defendants’ motion for summary judgment based on plaintiffs’ failure to exhaust administrative remedies as required by Rule 4:69-5. It also found plaintiffs’ action untimely under Rule 4:69-6(a).

Relying primarily on Garrou v. Teaneck Tryon Co., 11 N.J. 294 (1953), plaintiffs argue that the trial court should not have dismissed their complaint.

Held: Because, viewing all facts and reasonable inferences therefrom in the light most favorable to plaintiffs, they have shown that (1) there have been clear violations of local zoning and public safety laws, (2) the violations have particularly and adversely affected their right to the quiet enjoyment of their home, and (3) the violations have remained unabated despite having been brought to the attention of the relevant municipal officials, the trial court erred in dismissing plaintiffs’ complaint and the matter is remanded for further proceedings.

The panel begins by reviewing the facts and principles set forth in Garrou. There, in the face of municipal inaction, the plaintiff filed a complaint alleging the use of an adjacent lot for parking purposes violated the municipal zoning ordinance, disturbed his family, and depreciated the value of his property. He sought, inter alia, an order compelling municipal officials to enforce the zoning ordinance against the landowner and its commercial tenant.

The Supreme Court held that those seeking mandamus relief in this area must show (1) that there has been a clear violation of a zoning ordinance that has especially affected the plaintiff; (2) a failure of appropriate action despite the matter having been duly and sufficiently brought to the attention of the supervising official charged with the public duty of executing the ordinance; and (3) the unavailability of other adequate and realistic forms of relief.

Applying those principles here, the panel says plaintiffs presented concrete evidence establishing a pattern of indifference by the municipal officials charged with enforcement of the local zoning and beach-protection ordinances. The evidence, viewed in the light most favorable to plaintiffs, shows they repeatedly complained to these officials that Driftwood was expanding and intensifying its business activities in defiance of municipal zoning ordinances and that they were either ignored or told, in a summary and dismissive fashion, that enforcement action against Driftwood was unwarranted.

The panel then notes that N.J.S.A. 40:55D-70(a) authorizes zoning boards of adjustment to decide appeals where the appellant alleges error in any order, requirement, decision or refusal by an administrative officer in the enforcement of the zoning ordinance. N.J.S.A. 40:55D-72(a) requires that such an appeal be filed within 20 days. Both statutes envision an administrative officer, who is acting in some discrete and ascertainable fashion, putting the interested party on notice that his right to seek administrative review has accrued.

However, plaintiffs’ cause of action is grounded on the municipal defendants’ failure to act on their numerous complaints. If true, their allegations describe an amorphous history of municipal inaction, rendering plaintiffs without a realistic alternative form of administrative relief, especially with respect to the complaints involving the sand dunes. Absent this mandamus action, local property owners like plaintiffs are left without recourse to protect their properties in the face of municipal indifference.

As to the time restrictions in Rule 4:69-6(a) governing actions in lieu of prerogative writs, the panel holds that a relaxation of those time restrictions under Rule 4:69-6(c) is warranted. It says the facts raise questions concerning both the vindication of plaintiffs’ private property rights and the important public interest in ensuring that public officials perform their official duties diligently and with reasonable dispatch. Specifically with respect to the dune-protection ordinance, the citizens of Point Pleasant Beach are entitled to know if their public officials are doing all that is legally required to protect this vital public resource.

For appellants — Michael R. Rubino Jr. (Pandolfe, Shaw & Rubino; Jeff Thakker of counsel). For respondents — Sean D. Gertner (Gertner, Mandel & Peslak; Rachel S. Cotrino on the brief).