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Gober v. Township Committee of Township of Pemberton

Decided: February 11, 1982.

RICHARD G. GOBER AND JOYCE G. BENGE, PLAINTIFFS,
v.
THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF PEMBERTON AND THE TOWNSHIP OF PEMBERTON, DEFENDANTS



Haines, A.j.s.c.

Haines

[185 NJSuper Page 327] Pemberton Township has never issued a plenary retail liquor distribution license, although it is authorized to issue three of

these licenses based upon its population. N.J.S.A. 33:1-12.14 authorizes distribution licenses to be issued by the municipality at the rate of one for each 7,500 of its population; Pemberton has a population of 29,600. On October 7, 1981 its township committee adopted a resolution authorizing the filing of applications for two such licenses. A number of applications were received. At the recommendation of the municipal solicitor the township then introduced an ordinance authorizing the issuance of licenses and filing fees. The notice advertising the ordinance for final consideration was proper in all respects except that it referred to the date of the final hearing as "Wednesday, December 21, 1981." The meeting was to be held on December 21, but that date fell on a Monday, not a Wednesday. The same newspaper in which the advertisement appeared contained a second notice, not in statutory form, which called attention to the meeting and contained a correct, unambiguous date. That paper also carried a news story referring to the correct date. On December 15, 1981 a second legal notice was advertised which was in all respects correct. The governing body adopted the ordinance on December 21, 1981.

On December 28, 1981 the township committee adopted two resolutions. The first authorized the issuance of a license to Hadfield Enterprises subject to three conditions: (1) the obtaining of necessary permits from all regulatory authorities; (2) payment of all charges due the Township of Pemberton and (3) completion of required building construction within eight months.*fn1 The second resolution amended the October 7, 1981 resolution authorizing the license applications, by adding a paragraph fixing license fees for plenary retain distribution licenses at $2,000 a year, the statutory maximum.

Plaintiff Richard Gober is the holder of a plenary retail liquor consumption license in Pemberton Township under which he operates the Pig 'N Whistle Liquor Lounge. He and his wife, also a plaintiff, are residents of the township. They seek a declaratory judgment as to the validity of the licensing proceedings, claiming the ordinance and resolutions are ineffective as a matter of law.

Hadfield Enterprises has intervened as a necessary party defendant. It seeks declaratory relief determining the legality of the proceedings, taking a position opposite to that of plaintiffs. It also seeks an order directing defendant township committee, which changed its composition on January 1, 1982, to take any action necessary to complete the issuance of the license awarded to it by the 1981 committee. There are no factual disputes. This opinion disposes of all issues in response to the order to show cause.

A. The Validity of the Ordinance

N.J.S.A. 40:49-2 a provides:

Every ordinance . . . shall be published at least once . . . together with a notice of the introduction thereof and the time and place when and where it will be further considered . . . the first [publication] shall be at least 1 week prior to the time fixed for further consideration for final passage.

This statute must be construed strictly. Masnick v. Cedar Grove, 99 N.J. Super. 436 (Law Div.1968). Notice of the proposed adoption of municipal legislation is of public importance and a significant legislative concern. That concern is emphasized by the adoption of the "Sunshine Law," N.J.S.A. 10:4-6 et seq., which insists upon notice of public meetings. The notice which was advertised on December 14, 1981 was misleading; a reader could not determine whether the licensing ordinance was to be considered on a Wednesday of some undesignated date or on December 21, a Monday. Consequently, it did not conform to the statute and the attempted adoption of the ordinance was not effective.

It is suggested that the one-week publication requirement of the statute is to be interpreted as ...


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