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City of South Amboy v. Gassaway

Decided: November 25, 1985.

CITY OF SOUTH AMBOY, PLAINTIFF-RESPONDENT,
v.
ROBERT J. GASSAWAY, T/A GASSAWAY ENTERPRISES, DEFENDANT-APPELLANT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 195 N.J. Super. 239 (1984).

For modification and affirmance -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Pollock, J.

Pollock

We granted certification, 99 N.J. 232 (1984), to determine when an application for a zoning variance is "complete" for purposes of the 120-day automatic approval provision of N.J.S.A. 40:55D-73. In an unreported decision, the Chancery Division ruled that the application was complete upon filing. The Appellate Division reversed, 195 N.J. Super. 239 (1984), ruling that both payment of the filing fee and proof of service were essential for an application to be deemed complete. Although we find that filing of proof of service is not necessary for the completion of an application, we agree with the Appellate Division that a municipality may require payment of the filing fee before deeming an application complete. Thus, we affirm the judgment of the Appellate Division.

I

For seven years before the events that gave rise to this litigation, Robert J. Gassaway, t/a Gassaway Enterprises (Gassaway), leased premises at 228 Catherine Street, South Amboy. Gassaway conducted a furniture refinishing and automobile restoration business in a single-story garage on the premises, which were located in a residential zone. In 1981, when the City of South Amboy informed Gassaway that his use violated the zoning ordinance, he obtained from the secretary for the Board of Adjustment (Board) an application for a variance together with the Board's written instructions.

On October 27, 1981, Gassaway filed the application and a supporting plat plan with the Board. On approximately the

same date, his attorney called the Board secretary and learned that the matter would be heard at the December 9, 1981, meeting. The Board planning consultant reviewed the application, and in a letter of November 3, 1981, raised a number of questions about the application. The letter concluded that no justification existed for permitting a business use in the residential zone. The minutes of the November 12, 1981, meeting reflect that the Board did not act on the application because "all the material necessary to hear the case was not brought before the board." Thereafter, on November 17, Gassaway sent notices to affected property owners, and on November 30, 1981, he filed an affidavit of service.

At the beginning of the hearing on December 9, 1981, the Board advised Gassaway that he had not paid the filing fee. Gassaway's attorney, who had been under the impression that a check had been submitted with the application, paid the $85 fee in cash. At the conclusion of the hearing, the Board reserved decision.

At its next meeting, January 13, 1982, the Board voted to deny the application. Although the Board did not adopt a written resolution that evening, it published its decision in a local newspaper on January 16 and 23, 1982. It was not until March 10, 1982, that the Board adopted a written resolution memorializing the denial of the variance.

Gassaway did not appeal the denial to the governing body, N.J.S.A. 40:55D-17, or seek judicial review. Nonetheless, he continued to use the premises for his business. Consequently, the building inspector filed a complaint against Gassaway in the South Amboy Municipal Court charging him with violating the zoning ordinance. Gassaway was found guilty and fined $350. He appealed the conviction to the Superior Court and continued to use the premises for his business. As a result, South Amboy instituted the present action in the Chancery Division seeking a permanent injunction against the operation of the business.

Gassaway's basic contention throughout the judicial proceedings has been that he obtained an automatic grant of his requested variance because of the failure of the Board to adopt a written resolution of denial within 120 days of the date of his submission of a complete application. Critical to that assertion is the definition of a "complete application." N.J.S.A. ...


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