Defendants move for summary judgment, under Rule 3:56-2, as a matter of law on the grounds "that (a) this court lacks jurisdiction over the subject matter of this cause of action; and (b) the proceeding herein of the plaintiffs was not commenced within thirty days of the accrual of their rights, if any, provided by law."
The complaint in this action, a proceeding in lieu of the prerogative writ of certiorari , was filed January 25, 1949.
It alleges that plaintiffs are owners of real estate within two hundred feet of premises known as No. 25 Tonnelle Avenue, Jersey City, which premises lie within a residential zone as established under the Zoning Ordinance of Jersey City. The complaint further alleges that on September 10, 1948, defendant, Academy Associates, Inc., applied to defendant, Board of Adjustment of the City of Jersey City, for a variance in order to convert the residence building known as No. 25 Tonnelle Avenue to business purposes; that at the time of making the aforesaid application defendant, Academy Associates, Inc., was not the owner of the aforesaid premises but had agreed to purchase the premises from the owner thereof on condition the above-mentioned variation from the requirements of the zoning ordinance could be obtained. It is further alleged that on September 28, 1948, a public hearing on the aforesaid application was held by defendant, Board of Adjustment of the City of Jersey City, at which plaintiffs appeared by counsel and objected to the granting of the variation; that at the conclusion of the hearing the chairman of the Board announced that decision on the application would be reserved, and upon being asked by counsel for the plaintiffs whether they would be notified of the decision, the chairman advised that they would be so notified. The complaint further alleges that neither plaintiffs nor their counsel received notice that the Board had reached a decision on the aforesaid application, nor did they have any knowledge that a decision had been reached until December 29, 1948, when they read in a newspaper that the premises had been purchased by defendant, Academy Associates, Inc.
The complaint further sets forth that on November 13, 1948, the defendant, Board of Adjustment of the City of Jersey City, recommended to the Board of Commissioners of Jersey City that the application of defendant, Academy Associates, Inc., be granted, and on November 16, 1948, the defendant, Board of Commissioners of the City of Jersey City, passed a resolution granting to Academy Associates, Inc., permission to convert the aforesaid building for store purposes; that on December 30, 1948, defendant, Edward J.
Spoerer, Superintendent of Buildings of the City of Jersey City, issued a building permit to defendant, Academy Associates, Inc., by which the latter was permitted to convert the building located at No. 25 Tonnelle Avenue for store purposes.
The complaint further asserts that the Board of Adjustment had no jurisdiction to recommend the variation from the requirements of the zoning ordinance because it made no findings of the necessary jurisdictional facts as required by R.S. 40:55-39, as amended by chapter 305 of the laws of 1948, and that as a consequence thereof, the defendant, Board of Commissioners of the City of Jersey City, had no jurisdiction to pass the resolution permitting the aforesaid variation.
The complaint concludes with a demand that that action of the Board of Adjustment in recommending the variation, and the action of the Board of Commissioners in adopting the resolution permitting the variation be reversed and vacated, and that the building permit issued to Academy Associates, Inc., be revoked.
Defendants contend that the action should be dismissed for the reason that it was not commenced within time, and, therefore, contrary to R.S. 2:80-7 (chapter 381, P.L. 1948) which 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."
Defendants argue that under the above statute plaintiffs' right accrued to them on November 16, 1948 (date of the Board of Commissioners' resolution permitting the variation), and therefore any proceeding for review, hearing and relief should have ...