Griggs v. Zoning Bd. of Adjustment of Borough of Princeton

• Citation: 183 A.2d 444,75 N.J.Super. 438
• Decision Date: 11 July 1962
• Docket Number: No. A--129,A--129
• Parties: Burnett GRIGGS, Plaintiff-Respondent, v. ZONING BOARD OF ADJUSTMENT OF the BOROUGH OF PRINCETON, New Jersey, etc., Defendant-Appellant.
• Court: New Jersey Superior Court – Appellate Division

Page 438

75 N.J.Super. 438

183 A.2d 444

Burnett GRIGGS, Plaintiff-Respondent, v. ZONING BOARD OF ADJUSTMENT OF the BOROUGH OF PRINCETON, New Jersey, etc., Defendant-Appellant.

No. A--129.

Superior Court of New Jersey Appellate Division.

Argued March 26, 1962.

Decided July 11, 1962.

William R. Blair, Jr., Red Bank, for appellant (Parsons Canzona, Blair & Warren, Red Bank, attorneys).

Fred G. Stickel, III, Newark, for respondent (David Deitz, Trenton, attorney)

Before Judges GOLDMANN, FREUND and FOLEY.

The opinion of the court was delivered by

FOLEY, J.A.D.

Defendant appeals from a Law Division judgment reversing the board's denial of a 'special exception' to the Princeton zoning ordinance, which would permit plaintiff to construct a gasoline station in an area zoned as a business B1 district.

The pertinent sections of the zoning ordinance follow:

'Section 9.

Business B1 Districts

Prohibited Uses: The following uses of buildings and of land shall be prohibited in Business B1 Districts:

(9) Public garages, gas-filling stations and used car lots, except when approved by the Board of Adjustment in accordance with the provisions of Section 12(D). * * *'

'Section 12.

Exceptions and Special Provisions

(D) Public Garages, Gas-Filling Stations and Used Car Lots:

(1) The Board of Adjustment may after public notice and hearing, and subject to appropriate conditions and safeguards for safety and protection of health and the general welfare, permit without time limitation or for a stated term of years, in a Business B1 District or in a Business B2 District subject to the provisions of this subsection (D), a public garage, as gas-filling station or a used car lot. * * *' The plaintiff's property is located at the corner of Hulfish and Witherspoon Streets, about 100 feet from Palmer Square, the business center of Priceton. It measures approximately 10,000 square feet and has a frontage on the two streets totalling about 186 feet. A tavern is located directly to the north of the property, and directly to the west there is a municipal parking lot. To the south, across Hulfish Street, is located another gasoline station, and to the west, across Witherspoon Street, another municipal parking lot. Presently there are several buildings on plaintiff's lot, consisting of a two-story restaurant, a small garage, a fish store and his two and one-half story residence. At an earlier time the borough unsuccessfully attempted to classify the area in which the property is located as a 'blighted area.' See Griggs v. Princeton Borough, 33 N.J. 207, 162 A.2d 862 (1960).

Plaintiff applied to the building inspector for a special exception pursuant to section 12(D) above. The application was denied. He then appealed to the zoning board of adjustment, which held a hearing on October 27, 1960, upon notice to all landowners within 200 feet.

The evidence therein disclosed that the gasoline station in contemplation would be in conformity with the colonial type architecture of Palmer Square. In describing his plans, Richard Charlton, plaintiff's architect, testified that the station would be fire resistant, and he expressed the opinion that the removal of the existing structures and the installation of the station would provide a clear and unobstructed view around the corner of Hulfish and Witherspoon Streets thereby increasing traffic safety at the intersection. Charles Draine, an insurance broker, estimated upon the basis of the plans submitted and the testimony of the architect concerning the fire resistant construction, that the station would be in the high 20% Of commercial risks and would not effect an increase in the fire insurance premiums paid by adjoining owners. Nelson W. Thompson, manager of the Nassau Oil Company, which proposed to lease the station from plaintiff, testified that he had examined the files of the borough's engineering department relating to traffic accidents and had found that in the years 1956--1958, inclusive, 200 traffic accidents were reported to have occurred on Nassau Street, the main street of the borough; further, that of these, only five involved vehicles entering or leaving gasoline stations. Edmund D. Cook, a real estate expert, expressed the view that the proposed service station would be one of the 'highest possible uses' to which the property could be put, and would be an asset to the community. He testified, also, that there are no schools, churches or public gathering places nearby to which pedestrians might go, and that to his knowledge he had never seen a school child cross at this intersection. Plaintiff also submitted a petition signed by 110 of his neighbors approving the proposed station.

No objection to the requested exception, testimonial or otherwise, was made by anybody.

The board considered the matter in executive session and then voted two to grant, and two to deny the application, one member abstaining because he was the owner of property within 200 feet of the subject premises. This action necessitated denial of the application for the dual reasons that the zoning ordinance of the borough specifically requires the concurring votes of three members of the board to reverse the order of the building inspector, and that even in the absence of such a provision a tie vote is regarded as a 'statutory denial.' Miller v. Boonton Tp. Bd. of Adjustment, 67 N.J.Super. 460, 470, 171 A.2d 8 (App.Div.1961); R.S. 40:55--41, N.J.S.A.

The reasons for denying the exception, as recited by one member of the board and adopted by another, may be summarized as follows: (1) Plaintiff did not show undue hardship concerning the requested variances required in addition to the special permit (these variances related to plaintiff's application for permission to include living quarters in the station, a proposal which he abandoned at the hearing). (2) The proposed service station would be located at a busy intersection and cars cutting across traffic to enter and leave the station would 'create a dangerous situation' and 'disrupt the orderly flow of traffic.' (3) Cars entering and leaving the station would cut across sidewalks and endanger pedestrians who are attracted to the area. (4) Although a special permit for a gas station is authorized by section 12(D), the board has the power to require special conditions and safeguards for the safety and protection of health and the general welfare. The traffic flow and the sidewalk crossing problems create a situation where no adequate safeguards or conditions can be laid down for safety, etc. (5) There is no local need for the station, as there is another service station across the street operating as a nonconforming use.

The trial court found that there was nothing in the record to support the board's finding that a 'dangerous situation' would be created by the granting of the permit, and concluded that 'no determination can be permitted to rest upon undisclosed findings outside of the record.' The trial judge also noted that expert witnesses for plaintiff substantiated all of plaintiff's claims, no witnesses appeared to oppose the application, and that he had taken into consideration 'the several petitions' (of plaintiff's 110 neighbors) that were filed indicating no objection to the erection of the service station. The judge summarized his findings:

'In the instant case, it is the opinion of this court that the conclusions of the Board, as they relate to the erection of a gas station, were not supported by the evidence adduced before it. Furthermore, there appears to be no reasonable relationship between the restricted use and the public welfare. * * *'

The general rule enunciated by our courts is that the decision of a local board of adjustment is presumptively correct and should not be set aside unless shown to be arbitrary, capricious or patently unreasonable. Ardolino v. Florham Bark Board of Adjustment, 24 N.J. 94, 105, 130 A.2d 847 (1957). See also Schmidt v. Board of Adjustment, Newark, 9 N.J. 405, 423, 88 A.2d 607, 615 (1952), in which the court said:

'The rationale of the statutory scheme is that the board of adjustment shall supply expert discretion to the matters coming within its cognizance, and judicial interference is permissible only for relief against the arbitrary or capricious action that constitutes a clear abuse of the delegated discretion. The reviewing judicial authority may not exercise anew the jurisdiction of the administrative agency and merely substitute its own independent judgment for that of the body entrusted by the...