On rule to show cause why writ of mandamus should not issue.
For the relator, Albert E. Burling.
For the respondent, Mark Marritz.
Before Justice Donges, by consent.
[125 NJL Page 202] DONGES, J. Relator seeks a writ of mandamus to compel the issuance of a building permit for the erection of a gasoline service station at the intersection of Haddon, Locust and Maple avenues in the Township of Haddon, in Camden County. The permit was denied solely because of a provision in the ordinance of the township regulating the operation and maintenance of public garages, motor vehicle storage buildings and gasoline and oil filling stations. This provision is as follows: "No license shall be issued to any applicant for the building, maintenance, or operation of a public garage, motor vehicle storage building, gasoline or oil filling station, where the same is to be constructed or operated within five hundred (500) feet of another public garage, motor vehicle storage building, gasoline or oil filling station, existing or operating at the time of the
application." The land upon which relator desires to erect its service station is located within 500 feet of another such station.
There is no zoning ordinance in the township and, therefore, no question of the suitability of the land in question for the desired use is under consideration other than the one arising from its location within 500 feet of another gasoline station.
Relator contends that the section of the ordinance in question is unreasonable and that the arbitrary appropriation of the 500-feet limit is without justification and not within the police power of the municipality.
Depositions of three witnesses were taken by the relator. These tend to show that the proposed station is of the latest design, with all modern precautions against the fire hazard and with other safety features; that the station be well lighted and the style of lighting equipment will properly illuminate the approaches and the entire area; that no traffic hazard will be created by the location of the station at the proposed site.
The township offered no testimony of witnesses, but a stipulation is submitted to present the entire factual situation. This stipulation sets forth statistics relating to the fire experience of the respondent township and of three adjacent municipalities as to fires at gasoline service stations from January 1st, 1935, to March 1st, 1940. Respondent objects to the materiality of the evidence respecting such fires in the other three municipalities, but I think it is material. These figures indicate that in the Township of Haddon, a municipality of around 10,000 population, there have been two such fires, neither of which caused damage in excess of $10. There are twenty-one stations in the municipality.
In the Township of Pennsauken, population about 17,000, with about 100 filling stations, there have been five fires, four of which caused only small damage and one caused damage to the extent of $65.
In the borough of Collingswood, population about 13,000, with about thirty-three stations, there has been one such fire ...