Leonard, Seidman and Bischoff. The opinion of the court was delivered by Bischoff, J.A.D.
These two consolidated appeals present procedural questions arising out of plaintiff Shop Rite's unsuccessful application for a plenary retail distribution license.
Defendant Township of Raritan, Hunterdon County (hereafter township), by ordinance passed June 26, 1972, authorized the issuance of one plenary retail distribution license. Approximately 20 applications were received for this one license, including applications from plaintiff and defendant Yard. The license was issued to Yard and plaintiff filed an appeal to the Director of the Division of Alcoholic Beverage Control (hereafter Director). Counsel for defendants township and Yard on that appeal moved to dismiss on the ground
that the appeal was filed out of time. After argument the hearing officer recommended that the appeal be dismissed and the action of the township affirmed. The Director concurred and ordered the appeal dismissed. Plaintiff appeals from that order.
While the appeal was pending before the Director plaintiff filed a complaint in lieu of prerogative writs (1) seeking a review of the denial of its application for a license and the award of the license to it, (2) attacking as illegal the fundamental procedure followed by the governing body in the consideration of all applications, and (3) challenging the validity of a condition imposed by the township that a licensee retain its license for a period of five years. The wording of this complaint is identical to the wording of a petition filed with the notice of appeal to the Director.
Defendants in the in lieu proceeding (who are the same as in the appeal pending before the Director) moved to dismiss the complaint for lack of jurisdiction, and plaintiff moved for summary judgment. Both motions were denied. We granted defendants leave to appeal from that order, and both appeals were consolidated.
Turning first to the appeal from the order of the Director, we note that the notice of appeal to the Director was dated May 16, 1973. The basis of the dismissal of plaintiff's appeal was that it had not been filed within 30 days after issuance of the license to Yard. This issue was raised prior to the start of the hearing on motion and the decision on it terminated the appeal without any hearing on the merits. The statute establishing the time period within which an appeal should be taken is N.J.S.A. 33:1-22 and provides in applicable part as follows:
If the other issuing authority shall refuse to issue any license * * * the applicant shall be notified forthwith of such refusal by a notice served personally upon the applicant, or sent to him by registered mail addressed to him at the address stated in the application. Such applicant may within 30 days after the date of service or of mailing of such notice * * * appeal to the director from the action of the issuing authority.
If the other issuing authority shall issue a license * * * any taxpayer or other aggrieved person opposing the issuance of such license may, within 30 days after the issuance * * * appeal to the director from the action of the issuing authority * * *.
The license was awarded to Yard at a meeting of the township council on March 26, 1973. It is undisputed that plaintiff was never formally notified in person or by registered mail of the award to Yard. However, the Director found it significant that plaintiff was notified by certified mail that the license would be awarded to one of the applicants on March 26; that plaintiff attended the meeting and was aware of the award, and that plaintiff's deposit of $2,000, which accompanied its application for the license, was returned April 11, 1973.
The Director found that these facts constituted "functional performance" with the notice provision of the statute, depriving him of jurisdiction to hear the ...