Socony Mobil Oil Co. v. Ocean Tp.

• Decision Date: 23 June 1959
• Docket Number: No. L--8382,L--8382
• Citation: 56 N.J.Super. 310,153 A.2d 67
• Parties: SOCONY MOBIL OIL CO., Inc., a corporation of the State of New York, Plaintiff, v. TOWNSHIP OF OCEAN, Defendant.
• Court: New Jersey Superior Court

Page 310

56 N.J.Super. 310

153 A.2d 67

SOCONY MOBIL OIL CO., Inc., a corporation of the State of New York, Plaintiff, v. TOWNSHIP OF OCEAN, Defendant.

No. L--8382.

Superior Court of New Jersey Law Division.

June 23, 1959.

Starr, Summerill & Davis, Camden, for plaintiff (A. Vincent Field, Collingswood, and Sidney P. McCord, Jr., Camden, appearing).

Stout & O'Hagan, Allenhurst, for defendant (Sidney Hertz, Allenhurst, appearing).

KNIGHT, J.S.C.

The plaintiff, Socony Mobil Oil Co., Inc., instituted this proceeding in lieu of prerogative writs challenging the validity of a provision of the zoning ordinance of the defendant, Township of Ocean, which prohibits gasoline filling stations within 1,500 feet of each other. Plaintiff also seeks a review of the action taken by the Board of Adjustment and Township Committee of the Township of Ocean in refusing to grant to it an exception under the zoning ordinance to allow the use of its premises as a gasoline filling station.

The plaintiff holds an option to lease a lot located at the northwest corner of Norwood and Roosevelt Avenues in the Township of Ocean, County of Monmouth, with a frontage of 150 feet on Norwood Avenue and 108.3 feet on Roosevelt Avenue. A gasoline filling station, among other uses, is permitted on this lot according to section 5(p--2) of the township's zoning ordinance. However, these uses, as enumerated in section 5(p--2) of the ordinance, are allowable only by means of an exception according to section 5(p--3).

The procedure to be followed by an applicant to obtain a permit for a use classified as an exception is set forth in section 5(p--4) which provides that an application:

'* * * shall be first made to the Board of Adjustment who shall hear the application in the same manner and under the same procedure as the Board of Adjustment is empowered by law and ordinance to hear cases and make exceptions to the provisions of a zoning ordinance, and the Board of Adjustment may thereafter recommend in writing to the Township Committee that a permit be granted for a use in accordance with the stipulations of this ordinance, if in its judgment the use as it is proposed to be located, will not be detrimental to the health, safety and general welfare of the community and is reasonably necessary for the convenience of the community.

'Whereupon the Township Committee may, by resolution approve or disapprove such recommendation. * * *'

Accordingly, plaintiff applied to the board of adjustment for an exception to construct a gasoline filling station on the property in question. The board held a hearing on this application on March 13, 1958, and on March 27, 1958 it passed a resolution recommending to the township committee that the plaintiff's application for an exception be denied. On April 21, 1958 the township committee, adopting the recommendation of the board of adjustment, passed a resolution denying plaintiff's application.

The only reason given by the board of adjustment in its resolution recommending the denial of the application was that 'the proposed filling station would be within 1,500 feet of a presently existing filling station in violation of the Zoning Ordinance of the Township of Ocean.' The pertinent provision of the ordinance is section 8(B)(b--3)(a), which reads as follows:

'No Motor Vehicle Salesroom, Filling Station, or other establishment where motor fuel, lubricating oils or motor accessories are stored or motor services are rendered, may be located within 300 feet of any property upon which a church, school, hospital, institution, theatre, or public assembly seating over fifty persons, is located, Nor may a filling station be within 1500 feet of another filling station, and said distances shall be measured on a straight or air line from the outer boundary or property line in the one instance to the nearest property or boundary line.' (Emphasis supplied.)

Plaintiff contends that the provision of this section of the zoning ordinance which prohibits filling stations within 1,500 feet of each other is arbitrary, capricious, unreasonable, discriminatory, an unjust restraint on free trade, and unrelated to the public health, safety, welfare or morals of the community; and prays that a judgment be entered reversing the action of the Board of Adjustment and the Township Committee of the Township of Ocean, and that the proper officials be ordered to issue to plaintiff a zoning permit.

The Township of Ocean is predominantly residential in character, with a population that is rapidly increasing. It has several business districts but little industrial activity. Plaintiff's lot is located in one of four Class A business districts in the township. The easterly boundary of this district runs north and south along the west side of State Highway No. 71, known as Norwood Avenue, for a distance of approximately 2,000 feet. The district is bounded on the south by the Borough of Deal and on the west and north by the westerly right of way of the New York and Long Branch Railroad. In the business district along the west side of Norwood Avenue there is an Acme and an A & P food market, each with a large parking area, and numerous other business establishments, some of which have driveways and others of which do not.

On Norwood Avenue there are five gasoline filling stations within half a mile of plaintiff's lot. One is approximately 200 feet to the north in the township, and another is about 1,500 feet to the north on the opposite side of Norwood Avenue in the City of Long Branch. Within one half a mile to the south of plaintiff's lot there are three more gasoline filling stations on Norwood Avenue in the Borough of Deal. Three-quarters of a mile west of plaintiff's lot, along Roosevelt Avenue, there are three additional gasoline stations in the township.

The plaintiffs rely on the testimony given before the Board of Adjustment of the Township of Ocean on March 13, 1958; the deposition of Mr. Harold D. Shannon, a member of the Township Committee of the Township of Ocean; and the testimony of Mr. Earl Duffett, a claim and safety supervisor of the plaintiff corporation. Taken before the Board of Adjustment of the Township of Ocean on December 12, 1957. That testimony tends to establish that the operation of a gasoline service station does not create a serious fire hazard as opposed to other uses, because of the low incident of fires in such a business; that gasoline storage tanks are safe from fire and there is little or no risk of explosion; that the fire insurance rates for gasoline stations are less than that of other commercial establishments; and that the operation of such a business will create no traffic hazard for other automobiles or pedestrians either on or off the business premises.

At the hearing before this court the defendant called as witnesses, among others, the following persons: Mr. James J. Garrity, the Mayor of the Township of Ocean; Mr. Robert S. Barrabee, the Chairman of the Planning Board of the Township of Ocean; Mr. William D. Ayres, the Township Engineer; Mr. Seymour Stillman, an expert on municipal planning; and Mr. John Lazarus, a real estate expert.

Mr. Garrity, and Mr. Barrabee testified that the prohibition of gasoline stations within 1,500 feet of each other was adopted as a safety measure due to the traffic conditions in the business districts of the township and as part of an over-all plan for the development of the township and the most appropriate use of property. The mayor stated that in considering the 1,500-foot regulation they discussed the 'over-all plan and the good and the necessity of more gas stations in the community, the speed on a highway * * * and * * * how long at that rate of speed it would take to stop and coming out of a gas station, the traffic problem that would be, and, of course, the over-all planning of the business section in general.'

Mr. Ayres testified that 1,500 feet was the minimum distance for traffic safety in view of the conditions existing in the business districts of the township. He stated that the planning board, with whom he met, considered 'the comprehensive zoning plan of the entire Township * * * the residential areas concerned, the width of the highways, right-of-way lines, width of pavements, business sections, whether or not it was a main artery involved * * * the continual growth of the Township * * * the amount of traffic, the speed of the car,' and 'the size of the plots involved for gasoline stations' in considering this regulation of gasoline stations.

Mr. Stillman testified that in his opinion the provision under attack was reasonable and that according to sound planning there should be one gasoline station for every 1,000 or 1,500 persons. He stated that this was a general guide used by planning consultants and that 'within Ocean Township * * * there are not only sufficient but a slight over supply of gasoline stations on the basis of one gas station per 1,000 persons.'

Mr. Lazarus testified that there is a direct relationship between gasoline stations and population, in that there should be 500 families within a radius of each gasoline station. He stated that in the Township of Ocean there are approximately 3,500 families served by 13 gasoline stations, which are sufficient to satisfy the community needs. He also stated that...