For the prosecutor, Fox & Schackner (Donal C. Fox, of counsel).
For the respondents, Lawrence E. Keenan.
Before Justices Bodine, Heher and Wachenfeld.
The opinion of the court was delivered by
WACHENFELD, J. This writ of certiorari brings up for review the resolution of the Board of Commissioners of the Town of Belleville denying the prosecutor a permit to erect a gasoline station on the northwest corner of Belleville and Pleasant Avenues.
Prosecutor presented plans and specifications to the building inspector for a permit to erect a gasoline service station on the premises in question. He likewise applied to the License Bureau for a permit to operate the same and both officials refused to issue such permits as they had not been directed to do so by the town commissioners. Admittedly the plans and specifications submitted comply with the building and other pertinent codes relating to the construction of gasoline service stations in the town.
An appeal was then taken to the Board of Commissioners, who held a hearing and denied the motion, apparently because it had been objected to by a number of citizens, property owners in the neighborhood. The record indicates the Commissioners did so with knowledge of certain previous zoning litigation involving the intersection and the results which were consistently adverse to the municipality's contention, but they nevertheless gave consideration to the objections made by their constituents, which they seemingly felt obligated to do.
According to the town zoning ordinance, the area is designated as "A" residence zone, the highest residential restriction in the municipality. A separate ordinance of June 24th, 1947, conferred upon the Board of Commissioners of Belleville exclusive authority to grant licenses for the erection and use of buildings as motor vehicle service stations where in its judgment "such building or buildings and use will not be detrimental to the health, safety and general welfare of the community and is reasonably necessary for the convenience of the community." By express provision permits may only be allowed for locations in business or industrial zones.
The premises, extending 93 feet west on Belleville Avenue and 100 feet on Pleasant Avenue, are located at an intersection which might appropriately be called "litigation corner." The same property on one occasion and land directly opposite on the south side of Belleville Avenue on three occasions were involved in zoning litigation: Hayes v. Blank, 2 N.J. Mis. R. 959; Durkin Lumber Co. v. Fitzsimmons, 106 N.J.L. 183; Bianchi v. Morey, 124 Id. 258; Bianchi v. Morey, 128 Id. 219.
This intersection is less than a block from the Bloomfield-Belleville line. Bloomfield Avenue, which runs east and west, carries a heavy volume of motor vehicle traffic, acting as a feeder to three state highways and the Holland and Lincoln Tunnels. The neighborhood east of the intersection is residential in character. Until recently there was a florist and greenhouse on the premises but they have now moved. A night club operated adjacent to the west until it was torn down approximately four years ago and the land is presently vacant. On the southwest corner of the intersection directly across the street from prosecutor's property is an empty lot. Adjacent and extending to the west toward Bloomfield is a lumber ...