Harvard Enterprises, Inc. v. Board of Adjustment of Madison Tp., Middlesex County

• Decision Date: 06 July 1970
• Citation: 56 N.J. 362,266 A.2d 588
• Parties: HARVARD ENTERPRISES, INC., a New Jersey Corporation, Plaintiff-Appellant, v. BOARD OF ADJUSTMENT OF the TOWNSHIP OF MADISON, COUNTY OF MIDDLESEX, Defendant-Respondent, Township of Madison, a Municipal Corporation of the State of New Jersey, Intervenor-Respondent.
• Court: New Jersey Supreme Court

Page 362

56 N.J. 362

266 A.2d 588

HARVARD ENTERPRISES, INC., a New Jersey Corporation Plaintiff-Appellant, v. BOARD OF ADJUSTMENT OF the TOWNSHIP OF MADISON, COUNTY OF MIDDLESEX, Defendant-Respondent Township of Madison, a Municipal Corporation of the State of New Jersey, Intervenor-Respondent.

Supreme Court of New Jersey.

Argued Oct. 20, 1969.

Decided July 6, 1970.

David R. Simon, Newark, for plaintiff-appellant (David R. Simon and George L. Seltzer, Newark, on the brief; Simon & Allen, Newark, of counsel, Herbert B. Bierman, Parlin, attorney).

Karl R. Meyertons, South River, for defendant-respondent Board of Adjustment of Township of Madison; Marc J. Gordon, Newark, for intervenor-respondent Township of Madison (Karl R. Meyertons, on the brief for respondents; Marc J. Gordon, of counsel for respondents).

The opinion of the court was delivered by

SCHETTINO, J.

Plaintiff filed a complaint in lieu of prerogative writ challenging (1) the constitutionality of Article XVI, paragrah 2E, of the Madison Township (Township) zoning ordinance, and (2) the denial by the Board of Adjustment (Board) of a special exception permit to construct a gas station. The Township intervened as a party defendant.

In an unreported opinion, the Law Division upheld the validity of both the ordinance and the Board's action. Plaintiff appealed and we certified the matter before argument in the Appellate Division. R. 2:12--2.

Plaintiff is a purchaser under an option to buy land situated in Madison Township on which it desires to build a gas station. The lot is 233 feet away from an existing gas station and it lies in a 'C--3 Commercial Zone,' in which retail stores, business and professional offices, restaurants, automobile salesrooms, and parking lots are permitted. Gas stations are also allowed in this zone by way of special exception.

The section of the ordinance here challenged provides in relevant part:

E. Gasoline filling stations, Public garages and auto repair shops may be permitted in a C--1, C--2, or C--3 Commercial Zone provided that the following standards and conditions are complied with:

2. The proposed use shall be located on a lot * * * the lot lines of which are located not less than * * * two thousand (2000) feet from an existing gasoline filling station, public garage or auto repair shop.

6. The proposed use shall in no way be detrimental to the health, safety and general welfare of the Township nor shall it result in a depression of any established property values in the general area.

In accordance with the above ordinance, plaintiff applied to the Board for a special exception permit and for relief from the terms of the ordinance. Hearings were held on March 18, 1968, and April 5, 1968. Plaintiff appeared before the Board and called three witnesses to testify.

The first witness, John Hall, testified that he was the manager of the real estate department of Phillips Petroleum Co. and supervised the selection of sites for future gas stations. He stated that plaintiff's lot was a good location in view of the number of homes and apartments in the area and the normal traffic flow. Based on these factors, he concluded that there was a need for the service station, that the traffic would not be increased, and that the area would be 'generally enhanced.'

Hall conceded that his study of the area was made in 1966 and that a considerable amount of construction had occurred since that time. There were now three homes within 200 feet of the station. He also acknowledged that the gas tanks would have to be filled more than once a week. Accordingly, a delivery truck carrying 8,000 gallons of gasoline would be parked at the station at some time during a given week. Moreover, he stated that there was no fire hydrant in the area. In regard to the traffic flow, he indicated that a study he conducted revealed a total of 700 cars per day passing in front of the proposed station at peak hours.

The next to testify was Raymond Oothout, the construction engineer for Phillips Petroleum Co. who had prepared the plans for the station. He explained that the station would be an 'up-to-date ranch-style gable-roofed building with brick veneer face which * * * (would) lend itself well with the newer structures in the area.' Moreover, he testified that the storage tanks and the size and angle of ingress and egress conformed to presently accepted underwriting codes and petroleum industry standards. In regard to the ingress and egress, he stated that they were designed so that cars could turn into the station without coming to a stop and therefore, would not hinder the flow of traffic. He conceded, however, that the setback of the proposed sign did not conform to the zoning ordinance.

The final witness was Joseph Harrigan, a licensed New Jersey real estate broker. Mr. Harrigan specialized in commercial endeavors, particularly acquisitions of land for gas stations. In his opinion, the highest and best use of the property would be for a gas station. He asserted that such a use was compatible with the general area and would not detrimentally affect the value of adjacent properties.

In addition to the above witnesses, plaintiff submitted a report prepared by a petroleum institute which summarizes independent studies conducted in various parts of the United States of the fire and traffic hazards involved and which attempts to refute other traditional justifications for restrictive zoning of gas stations. Similar studies are discussed in Mosher, 'Proximity Regulation,' 17 Syracuse L.Rev. 1 (1965). In essence, these studies conclude that the traffic and fire hazards are no greater for gas stations than for other commercial uses. Surprisingly, the fire insurance rates for gas stations appear to be lower than for grocery stores and restaurants. Plaintiff's witnesses testified that the results of these studies coincided with their own experiences.

From the above testimony, the Board found the following facts: (1) The premises in question are 233 feet from an existing gas station; (2) There are three residential dwellings within 200 feet of said premises; (3) There is no fire hydrant in front of the premises nor in the immediate vicinity of the premises; (4) No sanitary sewer facility services the premises; (5) Gasoline would be stored in two underground tanks each holding 8,000 gallons of gasoline; and (6) The premises contain more than 20,000 square feet and are not within 1,000 feet of any school, hospital, church or library.

The Board then determined and found:

(a) Present Zoning Ordinance of the Township of Madison requires a distance of 2,000 feet from an existing gasoline filling station, public garage or auto repair shop and proposed station does not meet that requirement.

(b) Proposed use (would) be detrimental to the health, safety and general welfare and would result in depreciation of established property values in the general area.

Accordingly, the Board denied plaintiff's application for a special exception permit.

Plaintiff thereafter commenced this action in the Law Division to set aside the Board's denial of his application. Plaintiff argued that the part of the Township ordinance requiring 2,000 feet distance separating the proposed gas station from the presently existing station was unconstitutional in that it arbitrarily and unreasonably restricted the gas station while permitting other commercial uses.

At trial in the Law Division, the record of the proceedings before the Board was admitted into evidence. No further testimony was offered by either side.

In rejecting plaintiff's contentions, the trial court stated that it considered itself bound by earlier decisions of this Court and the Appellate Division. Specifically, the trial court referred to Schmidt v. Board of Adjustment of City of Newark, 9 N.J. 405, 88 A.2d 607 (1952), and Socony Mobil Oil Co. v. Township of Ocean, 56 N.J.Super. 310, 153 A.2d 67 (Law Div.1959), affd., 59 N.J.Super. 4, 157 A.2d 2 (App.Div.1960).

Schmidt held that for the purposes of classification and special regulation, gasoline service and filling stations would be considered Sui generis. 'They are an indispensable adjunct of our modern economy; but they involve risks to the safety of persons and of property and the general comfort and convenience which call for their regulation in the common interest.' 9 N.J. at 422, 88 A.2d at 615. The Schmidt rationale was subsequently applied in Socony. There, an ordinance prohibiting gas stations within 1,500 feet of each other was upheld against a challenge on equal protection grounds.

Regarding the above cases as dispositive, the trial court did not consider the second ground advanced by the Board for denying plaintiff's application, .e., 'Proposed use (would) be detrimental to the health, safety and general welfare and would result in depreciation of...