On writ of certiorari and rule to show cause why writ of mandamus should not issue.
For the relator-prosecutor, Aaron Heller.
For the respondent-defendant, John G. Dluhy.
Before Chief Justice, Brogan and Justices Donges and Perskie.
The opinion of the court was delivered by
DONGES, J. These cases are before the court on a writ of certiorari to review a resolution of the governing body of the City of Clifton denying relator-prosecutor's application for a license to operate a junk yard, so-called, or automobile reclaiming yard, and on a rule to show cause why a writ of mandamus should not issue to compel the issuance of the license sought.
R.S. 39:11-1, et seq., provides that where such businesses as that which the prosecutor seeks to operate are located adjacent to or are visible from a state highway (as the situs in question is) a license must be obtained from the Motor Vehicle Commissioner. Before application may be made to the Commissioner a permit must be obtained from the governing body or zoning commission of the municipality in which the yard is proposed to be located. The statute provides for a hearing by the local body and that no permit shall be issued unless the local body "find that no unreasonable depreciation of surrounding property would ensue from the establishment or maintenance of the motor vehicle junk yard or business and that the best interests of the community require the operation of the yard or business at the location designated. The proximity of schools, churches or other places of public gatherings, the sufficiency in number of other similar places in the vicinity
and the suitability of the applicant to receive the license, shall be taken into consideration in considering the application."
The City of Clifton has an ordinance providing for the licensing of "Junk Yards" and the ordinance classifies unregistered motor vehicles unfit for reconditioning and used parts of motor vehicles as "Junk" within the meaning of the ordinance. The ordinance provides that, in the case of yards adjacent to a state highway, coming within the provisions of the above statute, an applicant must first secure the license from the Motor Vehicle Commissioner before a municipal license may issue.
The city now contends that the prosecutor has not complied with the ordinance in that he has not first secured the state license. It seems to us, however, that the application of the relator to the municipality must be considered as the application for local approval as to the site as required by the statute before the Motor Vehicle Commissioner may act upon the matter. The city governing body treated it as such, apparently, for it proceeded to hold a hearing following notice to property owners within 200 feet. It is evident from the testimony given by the mayor on the depositions that the members of the governing body reached their conclusion upon a finding that the establishment of the yard would result in unreasonable depreciation of surrounding property, that the best interests of the city would not be served and that they did not desire to license any more junk yards in the city. These are matters that R.S. 39:11-5 requires them to determine, so it is apparent that the municipality treated prosecutor's application as one made for preliminary consent, as required by the statute, and acted accordingly. It will be so regarded by us.
The remaining question is whether or not the refusal of the permit was justified. In Resciniti v. Belleville, 117 N.J.L. 1, it was held that the refusal of a license to operate a junk yard, under a regulatory ordinance, must be based on a regulation which must be designed to promote the public health, safety and general welfare. So we consider the determining question in this case to be whether or not the operation of a junk yard on ...