Socony-vacuum Oil Co. Inc. v. Holly Tp.

• Decision Date: 16 January 1947
• Docket Number: No. 20838.,20838.
• Citation: 51 A.2d 19,135 N.J.L. 112
• Parties: SOCONY-VACUUM OIL CO., Inc. v. MOUNT HOLLY TP. et al.
• Court: New Jersey Supreme Court

135 N.J.L. 112

51 A.2d 19

SOCONY-VACUUM OIL CO., Inc.

v.MOUNT HOLLY TP. et al.

No. 20838.

Supreme Court of New Jersey.

Jan. 16, 1947.

Proceeding by Socony-Vacuum Oil Company, Incorporated, against Township of Mount Holly and others wherein the relator procured a rule on the respondents to show cause why a writ of mandamus should not be granted compelling respondents to issue a building permit to the relator for the construction of a gasoline service station.

Rule discharged.

Before PERSKIE, J., at chambers, pursuant to statute.

Starr, Summerill & Lloyd, of Camden (Joseph J. Summerill, Jr., of Camden, of counsel), for relator.

Powell & Parker, of Mount Holly (Harold T. Parker, of Mount Holly, of counsel), for respondents.

PERSKIE, Justice.

This cause is before me on the return of a rule to show cause allowed on July 12, 1946, why a writ of mandamus should not be granted compelling respondents to issue a building permit to relator for the construction of a two bay standard gasoline service station, with driveways, curb cuts, etc., at the southeast corner of High and Ridgeway Streets in the Township of Mount Holly, Burlington County, New Jersey.

The facts are not in substantial dispute. On April 11, 1946, the Township appointed a zoning commission pursuant to R.S. 40:55-33, N.J.S.A. That commission met on April 22, 1946 and thereafter proceeded with reasonable diligence to comply with the statutory provisions for the adoption of a zoning ordinance. Without detailing each step and the date on which it was taken, it will suffice, in my view of the case, simply to point out that this commission submitted its final report on July 2, 1946. On the same day, the Township Committee met and passed a zoning ordinance on first reading, and passed a motion fixing July 16, 1946 for the final passage of the ordinance. On the day fixed (July 16, 1946) the ordinance was adopted after second and final reading. Under the provisions of this ordinance the premises in question were included in ‘A’ Residential District where the proposed use of same as a gasoline service station was prohibited. There is no suggestion that the stated classification was improper, unreasonable or unfair. There would indeed be no basis for such a suggestion. At the last December opening of court, I personally inspected the premises. They are located in the heart of one of the finest residential sections of the Township.

The proofs disclose that between the dates of April 11, 1946 and July 16, 1946, namely, on May 17, 1946, relator secured an option from the owner to purchase the premises. This option admittedly contained the provision that its performance by relator was upon the express condition that the zoning or other law applicable to the premises permit the erection and maintenance thereon of the buildings, structures and equipment required by relator for the operation of a gasoline service station.

Thereafter, in the latter part of May, 1946, a representative of the relator first spoke to the building inspector of the Township in reference to a permit for a service station. The building inspector then stated that a zoning commission had been formed, that they were ‘working’ on an ordinance, that the premises in question were in a residential district and that the use to which relator intended to put the premises would not be permitted. Relator was then clearly put on notice. Later the respondents made their position abundantly clear to the relator. In short, respondents never receded from their position that a zoning ordinance was in the process of preparation and that under this ordinance the proposed use sought to be made of the property would be prohibited. Nonetheless, relator, on June 19, 1946, exercised its stated option to purchase the premises in question. The agreement to that end embraced the conditions stated in the option. It is frankly admitted that the purchase by relator was made with ‘complete knowledge’ that the ‘property was to be classified in ‘A’ Residential District, under the terms of the proposed ordinance,' and that in such district a gasoline service station would not be permitted.

Thereafter, on June 24, 1946, relator filed with the building inspector the customary form, duly filled out, to which were attached plans and specifications. At the same time it tendered to the building inspector the proper permit fee and was then informed that the money was not payable until the permit was granted. Relator was then again informed by the building inspector that he did not think that the permit would be granted because of the proposed zoning ordinance. No permit has as yet been granted. And, of course, no work has been begun by relator on its proposed service station.

It is true that relator served notice on respondents of its intention to apply for a rule to show cause, on July 5, 1946, why a peremptory writ of mandamus should not issue, and that the rule, as already observed, was made returnable on July 12, 1946, and that no zoning ordinance had then been adopted. But it is equally true that the zoning ordinance subsequently adopted had then been introduced and advertised, and, as adopted, the prohibitory use of the premises, as a gasoline service station, was no surprise to the relator. I find nothing in the proofs to warrant any suggestion of bad faith on the part of the respondents.

The applicable law, on the aforestated undisputed facts, is in sharp dispute by the respective parties. For the relator it is strongly and earnestly urged that its right to a writ of mandamus compelling respondents to issue the building permit is controlled by the prevailing law either at the time it made application for the permit or at the time it obtained the rule to show cause. And since there was no zoning in effect at either time, it was entitled to the permit. On the other hand, it is urged for respondents, with equal vigor and sincerity, that the status of the law prevailing at the time of the determination of the case is controlling.

My careful study of the capable and helpful arguments and briefs of counsel for the respective parties leads me to the conclusion that the long established precedents are clearly opposed to the position taken for the relator. The following are typical of the cases in support of the result reached.

In the case of Rohrs v. Zabriskie, 102 N.J.L. 473, 133 A. 65, relator sought a permit to build a five story apartment house. The permit was refused because the property was in a zone in which the erection of such a building was prohibited by the zoning ordinance. On appeal to the Board of Adjustment, relator's application for relief was denied. Subsequent to that denial the municipality passed an ordinance amending its building ordinance by prohibiting the erection of an apartment house of more than three stories within the municipal limits unless it should be of fireproof construction. It was admitted that the proposed building to be erected by relator did not comply with the amended ordinance. Speaking as to the second question involved, i. e., whether the amended...