On appeal from the Superior Court, Law Division, Hudson County.
Petrella and Kestin. The opinion of the court was delivered by Kestin, J.s.c., t/a.
The opinion of the court was delivered by
The plaintiff applied for a certificate of occupancy for a commercial use, specifically an amusement facility for video games and billiards. Union City's construction official determined that the proposed use was not permitted by the zoning ordinance and he declined to issue a certificate of occupancy.
Without availing itself of its right to apply to the Board of Adjustment for a determination of this issue, N.J.S.A. 40:55D-72, or for alternative relief such as a variance, the plaintiff filed an action in lieu of prerogative writs pursuant to R. 4:69. After a trial, judgment was entered for the plaintiff and the trial Judge directed that a certificate of occupancy issue. Defendants appealed. No stay of the trial court's judgment and order was sought.
R. 4:69-5 requires a litigant in plaintiff's position to exhaust local administrative remedies before filing an action in the Superior Court unless "it is manifest that the interest of Justice requires otherwise . . ." . See also Route 15 Assocs. v. Township of Jefferson, 187 N.J. Super. 481, 488-490, 455 A.2d 518 (App.Div.1982). The exhaustion of remedies issue was raised and argued in the trial court. The trial Judge determined that exhaustion was not necessary in this case and he proceeded to try and decide the matter. We believe this ruling to have been erroneous and we reverse.
It is axiomatic that the exhaustion of remedies requirement is neither jurisdictional nor absolute. Matawan Borough v. Monmouth County Bd. of Taxation, 51 N.J. 291, 296, 240 A.2d 8 (1968). The "interests of Justice" qualification confers discretion on the court before which the rule is raised. See Nolan v. Fitzpatrick, 9 N.J. 477, 484, 487, 89 A.2d 13 (1952). Where the issues to be considered in the case are solely questions of law, exhaustion of administrative remedies may be viewed as resulting in useless delay, but
[i]n every case the court should determine whether it is in the interest of Justice to dispense with the requirement that the plaintiff exhaust other judicial or administrative remedies, bearing in mind, however, that [the rule of court] itself dictates that the interest of Justice is ordinarily best served by requiring the plaintiff to first exhaust his other remedies and that it is only in special circumstances that the interest of Justice will require otherwise.
The "question of law" exception ordinarily includes challenges to ordinances, Riggs v. Township of Long ...