For the prosecutor, Morrison, Lloyd & Griggs (George A. Brown, of counsel).
For the respondent, Thomas L. Parsonnet (Joseph A. Ward, of counsel).
Before Justices Bodine, Heher and Wachenfeld.
The opinion of the court was delivered by
WACHENFELD, J. A writ of certiorari was allowed by this court to review the action of the Board of Adjustment of the City of Newark denying an application of the prosecutor to erect and operate a gasoline service station on the northeast corner of Raymond Boulevard and Chapel Street known as
459/467 Raymond Boulevard, having a frontage of 136 feet on Raymond Boulevard and 115 feet on Chapel Street.
Raymond Boulevard admittedly is an important traffic artery starting at the Passaic River and ending at the intersection of Warren and Wickliffe Streets, running east and west for a distance of more than three miles. It carries practically all of the traffic leaving the Pulaski Skyway from New York to Newark and the suburbs. Chapel Street is three blocks long, starting at Ferry Street, crossing Raymond Boulevard and Albert Avenue and ending at Lister Avenue.
The property is in the "first industrial zone," but the land immediately across the street to the west and northwest is zoned as "second industrial," in which zone gas stations are permitted. The neighborhood of the instant lot includes manufacturing plants, including the very large buildings of the Breyer Ice Cream Company, a baking company, distributing and express companies, elevated railroad tracks, eating establishments, warehouses, stores, houses and vacant lots. Directly west on the other side of the street there is a gasoline service station and approximately 200 feet northwest is a low-rent housing project. Both the gasoline station and the housing project are in the second industrial zone, where gas stations are permitted.
An ordinance of the city empowers the Board of Adjustment to recommend to the governing body whether a permit for a gasoline station should be issued "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 * * *." Thus the ordinance calls for the "advisory opinion of the board of adjustment, based upon its experienced judgment, as a prerequisite to action by the governing body." Schnell v. Township Committee of Ocean, 120 N.J.L. 194, 197.
There is no question of the validity of the ordinance. Schnell v. Township Committee of Ocean, supra. The board is guided by and must conform with the standard whether in its judgment the gasoline service station would be detrimental to the health, safety and general welfare and ...