Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Oros v. Town of Bridgewater

November 20, 1998

RICHARD D. OROS, SHARON L. OROS, VINCENT A. DESIMON, E. THELMA DESIMON, JAMES L. MORAN, TOM O'KEEFE, MISTY M. O'KEEFE, JOSEPH GABODA, WAYNE WARZYBUK, WENDY S. NEVIUS, WILLIAM F. SLACK, MARY E. SLACK, HENRY T. BOYER, LORRAINE V. BOYER, SUDHANSU K. BAKSI, SUPASMA BAKSI, JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, AND JOHN DOE 4, PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP OF BRIDGEWATER, DEFENDANT-RESPONDENT.



The opinion of the court was delivered by: Stern, P.j.a.d.

Argued November 5, 1998

[9]    Before Judges Stern and Landau.

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

Plaintiffs appeal from a judgment dismissing their complaint challenging a sewer construction assessment imposed by the Township of Bridgewater. The complaint was dismissed on defendant's motion because plaintiffs failed to provide notice to the Township Tax Collector and Township Clerk within thirty days of the adoption of the sewer assessment, as required by N.J.S.A. 40:56-54.

The resolution confirming the report of the Assessment Commissioners and establishing the assessment was adopted by the Bridgewater Township Council on August 18, 1997, and a complaint in lieu of prerogative writ was filed on September 17, 1997.

It is undisputed that the Township Clerk was served with a copy of the complaint on September 30, 1997 and the Tax Collector was served on October 8, 1997, both more than thirty days after the resolution was adopted. *fn1 The complaint was dismissed for failure to provide notice to the Tax Collector and Township Clerk within thirty days after enactment of the resolution as required by N.J.S.A. 40:56-54. That statute, entitled "appeals from assessments and awards of incidental damages; procedure," provides that the owner of any property assessed for benefits ... may within thirty days after confirmation of such assessment ... appeal from the same to the Superior Court by serving written notice of such appeal within such thirty days upon the tax collector and a duplicate upon the clerk of the governing body, either personally or by leaving the same at his office or place of abode. *fn2

[N.J.S.A. 40:56-54.]

Plaintiffs argue that they "substantially complied with the statute" by sending a copy of their complaint to the Township attorney (about thirty-nine days after the resolution was filed and within ten days of filing suit) *fn3 and that, in any event, "the appeal of a municipal sewer assessment may be properly raised and pursued through an action in lieu of prerogative writ." Plaintiffs also contend that we must reverse because he was not granted oral argument on the motion to dismiss. However, plaintiffs were afforded argument before us on the purely legal question involved, so they can assert no prejudice affecting the ultimate outcome. *fn4

Plaintiffs contend that N.J.S.A. 40:56-54 is procedural; that R. 4:69 governing prerogative writs therefore controls; that there are "parallel avenues to pursue and review assessments"; that because "local assessment appeals in and of themselves are constitutional issues," they are subject to R. 4:69-6(b)(2), and that therefore the service of the summons and complaint is sufficient without the prior statutory notice to the Township Tax Collector and Town Clerk (so long as the complaint was timely filed under R. 4:69-6(b)(2) which, as an exception to the general forty-five day time period in which to file a prerogative writ action, provides that "[n]o action in lieu of prerogative writs shall be commenced ... to review an assessment or award made for any municipal improvement after 30 days from the date of the confirmation of such assessment or award."). In other words, plaintiffs insist that the statute setting forth the procedures for appealing assessments is not dispositive because of the Supreme Court's constitutional power to adopt rules governing practice and "procedure." N.J. Const. art. VI, § 2, ¶ 3.

This appeal is controlled by Holloway v. Pennsauken Township, 12 N.J. 371 (1953), which upheld the dismissal of a complaint in lieu of the prerogative writ of certiorari for failure to comply with N.J.S.A. 40:56-54. Holloway was decided after adoption of the 1947 Constitution and its embodiment of the Supreme Court's rulemaking power concerning practice and procedure.

In upholding the dismissal, the Supreme Court said:

Both in the Appellate Division and here the plaintiffs argued that statute is inapplicable and the remedy is by proceeding in lieu of certiorari inasmuch as the assessments are attacked on constitutional grounds; that therefore the 30-day limitation in R. S. 40:56-40 and Rule 3:81-15(b)(4) and the doctrine of laches do not apply. Because a constitutional question was alleged to have been raised, the appeal was brought here. Rule 1:2-1.

R. S. 40:56-54 was in effect prior to the adoption of the Constitution of 1947 and remained in effect by virtue of Art. XI, Sec. I, par. 3. It is not intimated that any rule of court has yet been promulgated to take the place of the statute.

In attempting to by-pass the statute the plaintiffs rely on cases in which an attack on an assessment by writ ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.