Action in Lieu Prerogative Writ

Holt et. al. v. Upper Township Zoning Board of Adjustment, et. al.

Category: Action in Lieu Prerogative Writ

Terms: Zoning Board; Conditional Use Variance; Res Judicata; Action in Lieu of Prerogative Writ; Municipal Agency Decision

Summary: A conditional use variance to expand a non-conforming use required the Plaintiffs to obtain a lease agreement, approved by the Board Solicitor, for additional parking spaces prior to utilizing the second floor of the retail building. Prior to obtaining a lease, the Plaintiffs used the second floor for an event, and the Plaintiff was issued a citation. Subsequently, the Plaintiffs obtained a letter from neighboring parish stating the Plaintiffs could utilize their parking spaces. The Board Solicitor did not approve of the letter and advised the Plaintiffs they could appeal the decision to the zoning board. The Municipal Court found the Plaintiff guilty of the zoning violation by hosting an event in the second floor of the building. An action in lieu of a prerogative writ was filed by the Plaintiffs. Judge Mendez dismissed the Plaintiffs complaint without prejudice, principally due to the fact that the Plaintiffs did not exhaust administrative remedies (i.e. appeal to the zoning board) prior to filing the complaint. The Plaintiffs appealed, and the Township crossed appealed, claiming Judge Mendez erred in dismissing the complaint without prejudice. The Appellate Division denied both the Plaintiffs’ appeal and the Defendant’s cross-appeal, and affirmed Judge Mendez’s decision.