Phillips Oil Co. v. Mun. Council of City of Clifton

• Decision Date: 15 March 1938
• Docket Number: No. 263.,263.
• Citation: 120 N.J.L. 13,197 A. 730
• Parties: PHILLIPS OIL CO. et al. v. MUNICIPAL COUNCIL OF CITY OF CLIFTON et al.
• Court: New Jersey Supreme Court

197 A. 730

120 N.J.L. 13

PHILLIPS OIL CO. et al.

v. MUNICIPAL COUNCIL OF CITY OF CLIFTON et al.

No. 263.

Supreme Court of New Jersey.

March 15, 1938.

Certiorari by the Phillips Oil Company, a corporation, and others to review the action of the Municipal Council of the City of Clifton and another in denying an application of the named prosecutor for a permit to erect a motor vehicle service station within the municipal limits.

Writ dismissed.

Argued October term, 1937, before BODINE, HEHER, and PERSKIE, JJ.

Davies & Davies, of Paterson (Frank J. Davies, of Paterson, of counsel), for prosecutors. John G. Dluhy, of Paterson, for defendants.

HEHER, Justice.

This certiorari has brought up for review the action of the Municipal Council of the City of Clifton in denying the application of prosecutor, Phillips Oil Company, for a permit to "install three (3) gasoline tanks and pumps for a drive-in (motor vehicle service) station at (the southeast corner of) Market Street and Allwood Road," within the municipal limits.

The premises are within the area zoned for business; and section 2 of the zoning ordinance provides that in such districts "no building or premises shall be used and no building shall be erected which is arranged, intended or designed to be used as a Motor Vehicle Service Station, unless permission is first obtained from" the city council.

The council held a public hearing —five sessions in all —and the action complained of was taken by the unanimous vote of the body, without a specification of reasons.

The sole insistence of prosecutors is that the action so taken was "unreasonable, capricious and arbitrary." We do not think so.

The presumption is that this was a legitimate exercise of municipal power; and the burden of establishing the contrary rests upon prosecutors. Silvester v. Mayor and Council of Borough of Princeton, 104 N.J.L. 18, 139 A. 517; Cook v. Board of Adjustment of City of Trenton, 118 N.J.L. 372 193 A. 191; Bashlow v. City Council of Clifton, 118 N.J.L. 390, 193 A. 538.

Section 5 of the statute enacted pursuant to the zoning amendment of the State Constitution (P.L.1928, p. 696, R.S.1937, 40:55-32, Comp.St.Supp.1930, § *136 —4200J (5) declares its general purpose thus: "Such regulations shall be in accordance with a comprehensive plan and designed for one or more of the following purposes: to lessen congestion in the streets; secure safety from fire, panic and other dangers; promote health, morals or the general welfare; provide adequate light and air; prevent the...