Eastwood, Bigelow and Francis. Francis, J.c.c.
The respondent sought a variance from the zoning ordinance of the Borough of North Caldwell. Hearing on the application was held by the board of adjustment on June 28, 1951. On July 24, 1951, the board deposited a decision in its office, containing a refusal to recommend the variance. On September 17, 1951, 55 days thereafter, respondent filed a complaint in lieu of certiorari in the Superior Court, seeking a review of the adverse ruling.
The board of adjustment moved for summary judgment on the ground that the action was filed in violation of Rule 3:81-15(b) (5) which then limited the period for the allowance of such proceeding to 30 days from the filing of the decision in the office of the board. Prior to the argument of
this motion respondent moved for the relaxation of Rule 3:81-15(b) (5) and to allow the prosecution of the action on the ground that the failure to institute it within time was the result of excusable neglect.
Both motions were presented on the same day and on November 5, 1951, the Law Division of the Superior Court granted the motion to relax the rule and allowed the prosecution of the action "with the same force and effect as if instituted within the time limited by the Rule." The motion for summary judgment was denied. The board now appeals, contending that the trial court was without authority to grant the relaxation.
Article VI, section 5, paragraph 4 of the New Jersey Constitution of 1947 dealt with the prerogative writs as follows:
"4. Prerogative writs are superseded and, in lieu thereof, review, hearing and relief shall be afforded in the Superior Court, on terms and in the manner provided by rules of the Supreme Court, as of right, except in criminal causes where such review shall be discretionary."
Pursuant to the authority granted, the Supreme Court proceeded to regulate this practice. Its rules prescribed that such review, hearing and relief "may be had * * * in the manner hereinafter provided by these rules" (Rule 3:81-1) "by a civil action at law in the Law Division of the Superior Court" (Rule 3:81-2), by "the filing of a complaint in accordance with the rules for the conduct of actions in the Trial Divisions and shall thereafter proceed in accordance with said rules." (Rule 3:81-3.)
Upon the adoption of these rules the court did not fix the time within which a complaint in lieu of certiorari should be filed. An express limitation was contained in chapter 381 of the Laws of 1948 (L.p. 1562, N.J.S.A. 2:80-7), where it was provided that review would be barred unless the proceeding shall be commenced within 30 days "of the accrual of the right to such review, hearing or relief." This limitation was declared unconstitutional in Fischer v. Township of Bedminster ,
5 N.J. 534 (1950), on the ground that the regulation of the proceedings in lieu of the prerogative writs is the exclusive province of the Supreme Court and that there exists no right of "legislative superintendence."
Then on March 15, 1951, Rule 3:81-15 was adopted. It bears a descriptive title which was fashioned by the court itself, namely, "Limitation on Bringing Certain Proceedings." When the ...