For the prosecutrix, Morrison, Lloyd & Morrison (William J. Morrison, Jr., of counsel).
For the defendants, Eisenstein & Eisenstein (Louis Eisenstein, of counsel).
Before Justices Case, Donges and Heher.
The opinion of the court was delivered by
HEHER, J. Prosecutrix complains of the action of the Board of Adjustment of the Borough of Palisades Park,
recommending to the governing body the denial of her application for a variance from the use limitations of the local zoning ordinance to permit to the construction of a "drive-in" gasoline station on her lands situate at the southeast corner of Broad and Ruby Avenues, in that borough, and the concurrence of the governing body therein.
These are the circumstances: The plot in question, generally rectangular and unimproved, has a frontage of 101.08 feet on Broad Avenue and a frontage of 58.45 feet on Ruby Avenue. Two brothers of prosecutrix have for twelve years conducted an automobile accessories store and service station, and in connection therewith have operated three "curb" gasoline pumps, on the west side of Broad Avenue, directly opposite her lands. It is said that the proposed "drive-in" service station on prosecutrix' lands is to be "a substitute for these curb pumps," and it is not therefore to be considered "a new and additional gasoline station on Broad Avenue," but rather as a mere "change from a 'curb station' to a 'drive-in' station, identical in location in every respect except that it is on the opposite side of Broad Avenue" -- a use that will serve the essential public interest, since it will contribute substantially to the freer movement of traffic and be much less hazardous.
Prosecutrix' lands are situate in a district zoned for "trade or business," defined as the "selling or dealing in goods, wares and merchandise or property of any kind, either at wholesale or retail," and kindred uses not here pertinent. There is, however, this specific provision: "On Broad Avenue, no premises shall be used and no buildings shall be erected which are arranged, intended, designed or contemplated to be used for a 'filling station' or 'gas station.'" And there is a saving clause covering "non-conforming" buildings "under construction or the plans of which have been filed with the inspector of buildings and approved by him within three months prior to the passage" of the ordinance, "provided the same is completed within six months from the date" thereof.
The zoning ordinance was enacted on June 27th, 1939. Three days prior thereto, and apparently in anticipation thereof, prosecutrix' brothers, with her written consent, made
application to the building inspector for a permit to erect a gasoline service station on the premises in question, and to install three gasoline pumps thereon; and the permits were granted forthwith. There was no construction thereunder, and nothing further was done until May 17th, 1940, when prosecutrix applied to the building inspector for a permit to "build a drive-in gasoline service station" on the premises. The application was denied on the ground that it would contravene the ...