On return of rule to show cause in mandamus.
For the relator, Starr, Summerill & Lloyd (Joseph J. Summerill, Jr., of counsel).
For the respondents, Powell & Parker (Harold T. Parker, of counsel).
Before Justice Perskie, at chambers, pursuant to statute.
PERSKIE, J. This cause is before me on the return of a rule to show cause allowed on July 12th, 1946, why a writ of mandamus should not be granted compelling respondents to issue a building permit to relator for the construction of a two bay standard gasoline service station, with driveways, curb cuts, & c., at the southeast corner of High and Ridgeway Streets in the Township of Mount Holly, Burlington County, New Jersey.
The facts are not in substantial dispute. On April 11th, 1946, the Township appointed a zoning commission pursuant to R.S. 40:55-33. That commission met on April 22d, 1946, and thereafter proceeded with reasonable diligence to
comply with the statutory provisions for the adoption of a zoning ordinance. Without detailing each step and the date on which it was taken, it will suffice, in my view of the case, simply to point out that this commission submitted its final report on July 2d, 1946. On the same day, the Township Committee met and passed a zoning ordinance on first reading, and passed a motion fixing July 16th, 1946, for the final passage of the ordinance. On the day fixed (July 16th, 1946) the ordinance was adopted after second and final reading. Under the provisions of this ordinance the premises in question were included in "A" Residential District where the proposed use of same as a gasoline service station was prohibited. There is no suggestion that the stated classification was improper, unreasonable or unfair. There would indeed be no basis for such a suggestion. At the last December opening of court, I personally inspected the premises. They are located in the heart of one of the finest residential sections of the Township.
The proofs disclose that between the dates of April 11th, 1946, and July 16th, 1946, namely, on May 17th, 1946, relator secured an option from the owner to purchase the premises. This option admittedly contained the provision that its performance by relator was upon the express condition that the zoning or other law applicable to the premises permit the erection and maintenance thereon of the buildings, structures and equipment required by relator for the operation of a gasoline service station.
Thereafter, in the latter part of May, 1946, a representative of the relator first spoke to the building inspector of the Township in reference to a permit for a service station. The building inspector then stated that a zoning commission had been formed, that they were "working" on an ordinance, that the premises in question were in a residential district and that the use to which relator intended to put the premises would not be permitted. Relator was then clearly put on notice. Later the respondents made their position abundantly clear to the relator. In short, respondents never receded from their position that a zoning ordinance was in the process of preparation and that under this ordinance the proposed use
sought to be made of the property would be prohibited. Nonetheless, relator, on June 19th, 1946, exercised its stated option to purchase the premises in question. The agreement to that end embraced the conditions stated in the option. It is frankly admitted that the purchase by relator was made with "complete knowledge" that the "property was to be classified in 'A' Residential District, under the terms of the proposed ordinance," and that in such district a gasoline service station would not be permitted.
Thereafter, on June 24th, 1946, relator filed with the building inspector the customary form, duly filled out, to which were attached plans and specifications. At the same time it tendered to the building inspector the proper permit fee and was then informed that the money was not payable until the permit was granted. Relator was then again informed by the building inspector that he did not think that the permit would be granted because of the proposed zoning ...