Agenda - Planning Commission - 01/31/2013 - Special

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October 25, 2012 I Volume 61 Issue 20 Zoning Bulletin ous concrete patio by 10% of the total lot coverage; number of motel rooms; parking spaces by five spaces; and deck and pool area into the Borough's Boardwalk Right -of -Way. The Residents also observed the construction of outdoor restrooms. The Driftwood did not have any zoning permits authorizing these expansions or additions. The Resi- dents complained of all of these activities to the Borough officials. The Residents also alleged and complained to Borough officials that the Driftwood violated the Borough's parking ordinance in that it had insufficient parking spaces for each rental room, and the Residents al- leged and complained to Borough officials that the Driftwood repeat- edly violated the Borough's dune ordinance by: allowing motel guests unlimited access to the beach through the dunes; failing to install fenc- ing to protect the dunes; grading the dunes to accommodate a wedding; and hosting "Zumba" exercise classes on the dunes. The Borough officials failed to take action on any of the Residents' complaints. Eventually, the Residents brought suit in superior court against the owners of the Driftwood. The Residents also sought declaratory and mandamus relief against the Borough and Borough officers (collec- tively, the "Borough"). The Borough moved for summary judgment. The Borough asked the superior court to find that there were no material issues of fact in dispute and to decide the matter in its favor on the law alone. The court granted summary judgment in favor of the Borough. It held that the Residents failed to exhaust administrative remedies as required by New Jersey court Rule 4:69-5. The court also found that the Residents' legal action was untimely under Rule 4:69-6(a) because it was commenced more than 45 days after the occurrence of the events from which relief was sought. The Residents appealed. DECISION: Judgment of superior court, law division, reversed and remanded. The Superior Court of New Jersey, Appellate Division, held that mandamus relief was available to the Residents to challenge the Driftwood's alleged violations of zoning restrictions through their ac- tion against the Borough officials; the Residents were not required to first exhaust administrative appeals because there was no administra- tive "decision" to appeal. The court explained that both statutes allowing interested parties to seek review (N.J.S.A. 40:55D-70(a) and N.J.S.A. 40:55D-72(a)) "envision[ed] an administrative officer who is acting in some discrete and ascertainable fashion, putting the interested party on notice that his or her right to seek administrative review has accrued" (i.e., through an 10 ©2012 Thomson Reuters