Value Oil Co. v. Town of Irvington

• Decision Date: 29 July 1977
• Citation: 152 N.J.Super. 354,377 A.2d 1225
• Parties: VALUE OIL COMPANY, a New Jersey Corporation, Plaintiff, v. TOWN OF IRVINGTON, a Municipal Corporation, and Zoning Board of Adjustment ofthe Town of Irvington, Defendants.
• Court: New Jersey Superior Court

Page 354

152 N.J.Super. 354

377 A.2d 1225

VALUE OIL COMPANY, a New Jersey Corporation, Plaintiff, v. TOWN OF IRVINGTON, a Municipal Corporation, and Zoning Board of Adjustment ofthe Town of Irvington, Defendants.

Superior Court of New Jersey, Law Division.

July 29, 1977.

Richard A. Fazzari, Westwood, for plaintiff (Arthur W. Burgess, Woodbridge, attorney).

Henry E. Rzemieniewski, Manville, for defendant Town of Irvington.

Howard I. Waxman, Newark, for defendant Zoning Board of Adjustment of the Town of Irvington.

MARZULLI, J. S. C.

The issue presented by plaintiff's complaint in lieu of prerogative writs is whether a special exception permit must issue when an applicant demonstrates compliance with all enumerated criteria of a zoning ordinance.

On January 23, 1976 plaintiff Value Oil Company made application for a special use permit ¹ to the Zoning Board of Adjustment of the Town of Irvington for permission to use a premises in the Town of Irvington as a gasoline service station.

Authority for a special exception provision in a municipality's zoning ordinance is derived from N.J.S.A. 40:55-39 ². This statute provides in pertinent part:

The board of adjustment shall have the power to:

b. Hear and decide, in accordance with the provisions of any such ordinance, requests for special exceptions or for interpretation of the map or for decisions upon other special questions upon which such board is authorized by any such ordinance to pass.

No relief may be granted or action taken under the terms of this section unless such relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.

The specific provisions of the zoning ordinance of Irvington relevant to the case at bar are §§ 903.2 and 904.7 et seq. These sections provide:

903.2 The Planning Board within fifteen (15) days after review of the plans by the Planning Board shall submit to the Zoning Board of Adjustment its comments regarding the adequacy of the site plan and its conformance and effect on the overall master plan of the Town. The Zoning Board shall not take action on the permit until the Board receives written comments from the Planning Board or after the fifteen (15) day period, whichever is first.

The following uses may be permitted provided a special use permit is obtained from the Zoning Board of Adjustment under the terms and specifications herein. Whereas the necessity for certain specific uses is recognized and at the same time appreciating the fact that they or any one of them may be, or become, inimical to the public health, safety, and general welfare to the community if located without due consideration to the existing conditions and surroundings, the following standards and proceedings are hereby established, which are intended to provide the Zoning Board of Adjustment with a guide for the purpose of reviewing certain uses not otherwise permitted in this Ordinance. The Zoning Board of Adjustment shall review and administer applications for the following uses according to procedures spelled out for the Zoning Board of Adjustment.

904.7 Gasoline Service Stations: Motor vehicle service stations may be permitted in the B-2 Local Business District, M-1 Heavy Industrial Manufacturing District and M-2 Light Industrial Manufacturing District with a Special Use Permit provided the following standards are observed:

904.7-1 In addition to the information required in the site plan as spelled out in Section 503 of this Ordinance, the site plan shall also show the number and location of fuel tanks to be installed, the dimensions and capacity of each storage tank, the depth the tanks will be placed below the ground, the number and location of pumps to be installed, the type of structure and accessory buildings to be constructed, the number of automobiles which are to be garaged.

904.7-2 Motor vehicle service stations in a business zone shall comply with lot and area and width requirements of the B-2 Local Business District, and in a Light Industrial and Heavy Industrial Manufacturing District shall comply with lot and area and width requirements of the M-1 and M-2 zones.

904.7-3 Driveways shall not be more than twenty-four (24) feet wide at any point. Driveways must at least be five feet from any side lot line and twenty-five feet from the intersection of street lines. No more than two driveways shall be permitted for each one hundred (100) feet of street frontage.

904.7-4 The entire area of the site travelled by motor vehicles shall be hard surfaced.

904.7-5 Any repair of motor vehicles shall be performed in a fully enclosed building and no motor vehicle shall be offered for sale on the site. No motor vehicle parts, or partially dismantled motor vehicles shall be stored outside of an enclosed building.

904.7-6 No vehicles shall be permitted to be standing or parked on the premises of a motor vehicle service station other than those used or serviced by the employees in the indirect or direct operation of the establishment.

904.7-7 Accessory goods for sale may be displayed on the pump island and the building island only. The outdoor display of oil cans, and/or antifreeze and similar products may be displayed on the respective island if provided for in a suitable metal stand or rack.

904.7-8 No motor vehicle service station or public garage shall be located within five hundred (500) feet of any public entrance to a school, library, hospital or charitable institution. Such distance shall be measured in a straight line from said public entrance to the lot line nearest said entrance along the street line.

904.7-9 Where such uses abut another property, appropriate evergreen planting or attractive non-corrosive fencing with a minimum height of six feet shall be provided and maintained, thereby screening the abutting properties.

904.7-10 All fuel pumps shall be located at least twenty (20) feet from any street or property line and shall be attendant operated.

The premises in question are situated on the south side of Springfield Avenue, a major thoroughfare, between Sharon and Bruen Avenues, and within a few blocks of a northbound entrance to the Garden State Parkway. They are in a business area on a site previously occupied by a gasoline service station. Behind the site on Bruen Avenue there is a three-story garden apartment building. A gasoline service station which closes at about 10 p. m. adjoins the site on the west side. The premises lie within a B-2 Zone Local Business District, as delineated by § 609 et seq. of the zoning ordinance, ³ where a gasoline service station is permitted provided a special use permit is obtained.

Value Oil seeks to demolish the existing building, replace it with a modern one and operate a 24-hour, gasoline-only station.

The application of Value Oil was referred to the Irvington Planning Board pursuant to § 1102.1-1 of the zoning ordinance. Finding that the construction and operation of a gasoline service station on this site would not have an adverse effect on the development and planning of the town, the planning board on February 26, 1976 gave its approval to the application.

Since Springfield Avenue is a county highway, Value Oil's application was then referred to the Essex County Planning Board for review, with approval being granted on April 15, 1976. Following a plenary hearing before the zoning board on April 26, 1976 the application was denied because the proposed width of the driveways of the gasoline service station exceeded the 24-foot limit imposed by the zoning ordinance. The driveway widths, however, were within the 29-foot limits required for county highways. Due to the fact that contrary recommendations on the application were made by the planning board and the zoning board, the matter was referred, pursuant to § 1102.1-3 of the zoning ordinance, to the town council for a final determination. On June 22, 1976 the town council adopted a resolution that the county-dictated driveway widths govern and remanded the application to the zoning board. The board affirmed its denial on September 7, 1976.

There still existing a difference in disposition the planning board approving and the zoning board denying Value Oil's application the matter was again referred to the town council. A hearing was held on October 20, 1976 and by resolution of January 11, 1977 the town council approved the action of the zoning board denying Value Oil's application for a special use permit.

The parties agree that Value Oil has satisfied and demonstrated its compliance with all the specific criteria of § 904.7 of the zoning ordinance. The zoning board and town, however, assert that despite this compliance they still possess the discretion to deny the application upon their finding that the construction and operation of a gasoline service station at this location would be detrimental to the public good and would substantially impair the intent and purpose of the zone plan and zoning ordinance.

No courts of our State have heretofore dealt with the precise issue presented before this court. In light of this, a discussion of applicable zoning constructs is appropriate.

Zoning principles embody a conflict between competing forces. On one side of the continuum is an individual's common law right to use and develop his real property as he desires, provided no nuisance is thereby created. On the other side is the legislative body's inherent police power to protect and promote the health, safety and welfare of its citizens. In an attempt to lend a mediating influence to these competitive forces, municipalities, through authority granted by the Legislature, generally provide for a zoning board to act as a fulcrum in granting variances and special exceptions. Of importance in the case at bar is that this court has before it for consideration a special exception, in contradistinction to a variance to the zoning ordinance.

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