Civil action to set aside revised Zoning Ordinance in the Borough of Shrewsbury. On motion to strike complaint.
[2 NJSuper Page 551] The above entitled action was originally brought by the plaintiffs against the defendant through a procedure in lieu of prerogative writs (R.S. 2:80-5 and Superior Court Rule 3:81), to review the "Revised Zoning Ordinance of the Borough of Shrewsbury, New Jersey." The plaintiffs in their suit demanded, (1) that the said ordinance be set aside in its entirety, and (2) that such provisions of said ordinance as
violate the statutes of the State of New Jersey and Constitution of the United States be set aside. The merits of the original cause of action on behalf of the plaintiffs have not been presented to the court for determination. Since the commencement of the suit, the defendant has moved to strike the complaint on the grounds: (1) That the complaint filed to state a claim upon which the relief prayed for could be granted; and (2) that the court lacked jurisdiction over the subject matter of plaintiffs' action for the reason that said action was not commenced within thirty days of the accrual of plaintiffs' right of action as required by R.S. 2:80-7.
At the hearing of the motion, defendant abandoned the first ground above mentioned and the motion is now before the court solely on the second ground. It is agreed between the parties that the ordinance in question was adopted and approved by the Mayor of the municipality on December 7, 1948; that a notice thereof, dated December 8, 1948, was published on December 9, 1948 in a newspaper circulated in the municipality.
Section 22 of the ordinance provides:
"SECTION 22. When Effective.
"This Ordinance shall take effect immediately upon its passage and publication according to law."
The defendant claims that the ordinance went into effect on December 7, 1948, and the plaintiffs' suit was commenced on January 7, 1949.
R.S. 2:80-7 provides as follows:
"No proceedings for review, hearing and relief in lieu of prerogative writs shall be commenced, unless it shall be commenced within thirty days of the accrual of the right to such review, hearing or relief, except as provided in any other law or by Rules of the Supreme Court."
The above act became effective under its terms on September 15, 1948.
The main dispute between the parties is the method of computing the thirty day limitation. It seems that the proper method ordinarily is to exclude the day of the adoption of the ordinance; McCulloch v. Hopper , 47 N.J.L. 187; Metropolitan ...