For the prosecutors, Davies & Davies (Frank J. Davies, of counsel).
For the defendants, John G. Dluhy.
Before Justices Bodine, Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. 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. Princeton, 104 N.J.L. 18; Cook v. Board of Adjustment of Trenton, 118 Id. 372; Bashlow v. City Council of Clifton, 118 Id. 390.
Section 5 of the statute enacted pursuant to the zoning amendment of the state constitution (Pamph. L. 1928, p. 696) declares its general purpose thus: "Such regulations shall be made in accordance with a comprehensive plan and designed for one or more of the following purposes: To lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health, morals or the general welfare; to provide adequate light and air; to prevent the overcrowding of land or buildings; to avoid undue concentration of population. Such regulation shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of property and encouraging the most appropriate use of land throughout such municipality."
The decisive question therefore is whether this municipal action, appraised in the light of these statutory considerations, represents an arbitrary exercise of power, in that it is not designed to subserve the legislative policy. Does it bear a ...