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Schnell v. Township Committee of Township of Ocean

Decided: April 22, 1938.

HARRY F. SCHNELL, PROSECUTOR,
v.
THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF OCEAN, THE BOARD OF ADJUSTMENT OF THE TOWNSHIP OF OCEAN, THE BUILDING INSPECTOR OF THE TOWNSHIP OF OCEAN, ANTHONY MILLER AND ELSIE P. MILLER, DEFENDANTS



On certiorari.

For the prosecutor, Gilbert H. Van Note.

For the defendants the Township Committee of the Township of Ocean, the Board of Adjustment of the Township of Ocean and the Building Inspector of the Township of Ocean, Henry H. Patterson (Kays R. Morgan, of counsel).

For the defendants Anthony Miller and Elsie P. Miller, Potter & Fisher.

Before Justices Bodine, Heher and Perskie.

Heher

The opinion of the court was delivered by

HEHER, J. Prosecutor assails "the action" of the township committee of the Township of Ocean, in the County of Monmouth, and the township's board of adjustment and building inspector, "in recommending, granting and issuing" to defendants Miller "a permit for the erection of a gasoline station, automobile filling station or public garage" on the northwest corner of Roosevelt Avenue and Monmouth Road, within the township.

The building inspector, deeming that he was without authority, took no action on the original application directed to him. The matter was then presented to the board of adjustment, created by the municipal zoning ordinance, who, after public hearing had on notice to the parties in interest, "recommended" the issuance of the permit to the township committee. That body, by resolution adopted at a regular meeting held on March 5th, 1937, "approved" the "application," and directed the building inspector to issue a permit in accordance therewith.

Pursuant to the power conferred by chapter 274 of the laws of 1928 (Pamph. L. 1928, p. 696; Rev. Stat. 1937, 40:55-30 et seq.), the municipal governing body, on June 6th, 1930, adopted the zoning ordinance; and it was therein provided [section 5, subdivisions (1) and (m)] that, since "gasoline or oil stations, automobile filling and cleaning stations and public garages," while necessary, "may be inimical to the public safety and general welfare if located without due consideration of conditions and surroundings," no permit therefor shall be issued "except upon application first made to the board of adjustment," who is directed to hear the same "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 empowered to "recommend in writing to the township committee that a permit" for such use be granted, if, in its judgment, it "will not be detrimental to the health, safety and general welfare of the community, and is reasonably necessary for the convenience of the community;" provided

that no permit for "construction or use as a gasoline or oil station, automobile filling or cleaning station or public garage shall be given in a residential zone or district." The premises in question are located in a district zoned for business.

The primary question for decision is whether the provisions of subdivisions (1) and (m) of section 5 of the ordinance, in so far as they specially classify automobile service stations and public garages, constitute a valid exercise of municipal power.

Of necessity, the factor of safety in several of its aspects, as well as the public convenience, enters largely into the determination of the location and the physical characteristics of these service stations. Reasonable regulation as respects such land uses, guided by these considerations, is therefore embraced within the police power. See Hirschorn v. Castles, 113 N.J.L. 277; Bashlow v. City Council of Clifton, 118 Id. 390; Meslar v. Township Committee of Denville, 14 N.J. Mis. R. 497. As pointed out in Phillips Oil Co. v. Municipal Council of Clifton, 120 N.J.L. 13, section 5 of the Zoning act, supra, directs that zoning regulations ...


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