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Zoning Board of Adjustment of Township of Sparta v. Service Electric Cable Television of New Jersey Inc.

Decided: January 25, 1985.

ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF SPARTA, PLAINTIFF-RESPONDENT,
v.
SERVICE ELECTRIC CABLE TELEVISION OF NEW JERSEY, INC., A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Sussex County.

Michels, Petrella and Baime. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

Pursuant to leave granted by this court, defendant Service Electric Cable Television of New Jersey, Inc. (Service Electric) appeals from an order of the Law Division entered in favor of plaintiff Zoning Board of Adjustment of the Township of Sparta (Sparta) staying administrative proceedings before the Board of Public Utilities, Office of Cable Television (Board), pending determination of this matter.

In June, 1982, defendant Service Electric, a New Jersey corporation, submitted an application to Sparta to obtain a variance to expand and upgrade its cable television transmission and receiving facilities within the township. Service Electric sought permission to construct an addition to the existing

headend facility to house a generator room and equipment room, to erect a second receiving disc, and to erect two two-hundred foot towers for receiving and retransmitting television signals. After numerous public hearings Sparta voted to deny the variance on January 25, 1984.

On March 1, 1984, Service Electric filed an appeal from Sparta's decision with the Board pursuant to N.J.S.A. 48:5A-17(e), seeking an order permitting it to undertake the improvements denied by Sparta. Sparta filed an answer to Service Electric's petition alleging that the Board lacked jurisdiction and that Service Electric should have petitioned the Law Division for relief by a complaint in lieu of prerogative writs. The Office of Administrative Law designated Service Electric's appeal a contested case and assigned the matter to an administrative law judge, who issued a prehearing order. On May 14, 1984, Sparta instituted this action seeking a declaratory judgment (1) that Service Electric is not a public utility and that any appeal from its decision therefore should be made to its (Sparta's) Township Committee pursuant to N.J.S.A. 40:55D-17 of the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., not the Board, as provided by N.J.S.A. 48:5A-17(e) of the Cable Television Act, N.J.S.A. 48:5A-1 et seq., and (2) that following passage of the Municipal Land Use Law, specifically N.J.S.A. 40:55D-17, N.J.S.A. 48:5A-17(e) of the Cable Television Act is null and void. Sparta also filed a motion to stay the hearings before the Board. The trial court granted the stay, and we granted Service Electric leave to appeal from that order.

Preliminarily, both the Attorney General and Service Electric object to the adequacy of the service of process and notice with regard to both Sparta's declaratory judgment complaint and its motion for stay of the administrative hearing before the Board.

First, Service Electric urges that it was served with a summons in the declaratory judgment action beyond the ten days following the filing of the complaint as required by R. 4:4-1 and that it was never properly served with notice of the motion for

the stay. Service Electric therefore contends that Sparta's complaint should be dismissed and the stay vacated.

Sparta filed its declaratory judgment complaint and its notice of motion for stay of the hearings before the Board on May 15, 1984. Sparta attempted service on Service Electric by sending a copy of the complaint and notice of motion to Albert N. Stender, Esq. (Stender) of the New Jersey law firm of Holzapfel, Perkins & Kelly (which firm is a partner in the New York law firm of LeBoeuf, Lamb, Leiby & MacRae), by certified mail, return receipt requested. The service documents were accompanied by an acknowledgment for receipt of service pursuant to R. 4:4-6. Sparta's attorney apparently decided to serve Stender rather than Service Electric directly because Stender had appeared on Service Electric's behalf at the prehearing conference before the administrative law judge. In addition Sparta's attorney certified that Stender had notified him following the rejection of Service Electric's application for a variance that he had taken over representation of Service Electric "and that he would be handling all their legal proceedings in regard to this matter."

Stender's office received the service documents sometime after May 16, 1984, but, alleging that it did not have authorization from Service Electric to accept service in this matter, did not complete or return the acknowledgment of service. Stender did, however, contact the office of Sparta's attorney and advise a secretary there that proper service had not been made on Service Electric in compliance with the provisions of R. 4:4-4(c)(1). Thereafter, on June 7, 1984, Sparta personally served Clifford Paul, a General Manager of Service Electric, with a copy of the declaratory judgment complaint. Sparta did not, however, serve a copy of the notice of motion for a stay upon Paul. A week later, on June 15, 1984, the trial court granted Sparta's motion for a stay on the basis only of ...


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