This is a motion by Esso Standard, Division of Humble Oil and Refining Company, to dismiss certain portions of the complaint in an action in lieu of prerogative writs. For purposes of this motion the following factual statement is necessary.
Marie Edelhauser, one of the named defendants in this action, owns property at Prospect Street in West Orange, New Jersey. A gasoline station had been located on this property since a date prior to April 1932. In February 1960 there was a fire at the gasoline station on the Edelhauser land. In November 1960 Marie Edelhauser leased the premises to defendant Esso Standard. One month later Esso Standard made application to defendant Andrew Leosk, Building Inspector of the Town of West Orange, for a permit to erect a gasoline station on the Edelhauser property. The application was denied on the ground that a gasoline station constitutes a special exception in the district (Zone B) in which the property is located. Pursuant to section 11-C 6 (f) of West Orange Zoning Ordinance of 1954 (as amended December 6, 1960) an applicant for a special exception must first obtain a recommendation of approval by the board of adjustment and the subsequent approval of
that recommendation by the board of commissioners before a building permit can be issued. Esso Standard appealed to the board of adjustment from the decision of the building inspector. After a hearing on January 10, 1961 the board of adjustment recommended to the board of commissioners that the request for a special exception be approved. On March 21, 1961 the board of commissioners by resolution approved the recommendation of the board of adjustment and granted the special exception.
On April 16, 1961 Esso Standard made application to the board of commissioners for a gasoline service station operating license pursuant to chapter 6 of the Revised Ordinances of the Town of West Orange. This license was granted on July 21, 1961, whereas the building permit had been issued on June 9, 1961.
Helen F. Riedel, the plaintiff in this action, owns property within 200 feet of the land owned by defendant Marie Edelhauser. In her complaint plaintiff admits that she had due and legal notice of the hearing before the board of adjustment on the application of Esso Standard and alleges, although the minutes of the hearing do not so indicate, that she recorded her objections at the hearing. In her complaint plaintiff demands that the court set aside the board of adjustment's recommendation and the board of commissioners' approval of the special exception, the building inspector's issuance of the building permit and the board of commissioners' grant of the operating license. Defendant Esso Standard now moves to dismiss those portions of the complaint dealing with the approval of the special exception.
Defendant relies on R.R. 4:88-15(b)(3) which provides:
(b) No proceeding in lieu of prerogative writs shall be commenced
(3) to review any determination of a planning board or board of adjustment, or any resolution by the governing body or board of public works of a municipality approving or disapproving a recommendation made by the planning board or board of adjustment, after 45 days from the publication of a notice once in the official newspaper
of the municipality or a newspaper of general circulation in the municipality; * * *."
The record discloses that there has never been publication of a notice in either the official newspaper of the municipality or of a newspaper of general circulation in the municipality. However, defendant attached to its motion a certified copy of a letter which was written by plaintiff on March 30, 1961, addressed to the Mayor and Board of Commissioners of West Orange. In this letter plaintiff urged the board to reconsider its decision of March 21, 1961 approving the special exception. Plaintiff has admitted in her brief that she had actual notice not later than March 30, 1961. Defendant contends that plaintiff's actual notice of the board of commissioners' approval of the special exception started the 45 day time period running. Therefore, since plaintiff had actual notice by March 30, 1961, the 45-day time period within which an in lieu proceeding could be commenced would have expired in May of 1961. If defendant's contention is correct, plaintiff is out of time as to those portions of the complaint dealing with the board of commissioners' approval of the special exception on March 21, 1961, since her complaint was filed on August 2, 1961.
Plaintiff contends that when the board of adjustment's recommendation approving the special exception use was approved by the March 21, 1961 resolution of the board of commissioners, it was conditioned upon Esso Standard's compliance with chapter 6 of the Revised Ordinances of West Orange. Therefore, the argument is made that until Esso Standard applied for and obtained an operating license after having generally complied with chapter 6, plaintiff had no right to complain. The conclusion of this argument is that any action brought prior to July 12, 1961 (the date the board of commissioners issued the operating license to Esso Standard) would have been premature.
The argument set out in the preceding paragraph will be examined first, for if it is accepted by this court, the
question of the effect of actual notice when the constructive notice provision of R.R. 4:88-15(b)(3) has not been complied with would be moot.
Plaintiff claims that in order to determine when she was aggrieved, for purposes of reviewing the alleged wrongful actions of the governing body, those sections of the West Orange zoning ordinance dealing, with special exception use, and chapter 6 of the Revised Ordinances, ...