For the prosecutor, Winne & Banta (Edward G. Evertz, of counsel).
For the defendant, Nicholas S. Schloeder.
Before Justices Bodine, Heher and Wachenfeld.
The opinion of the court was delivered by
HEHER, J. Certiorari was granted to review a resolution of the governing body of the defendant municipality adopted May 6th, 1947, denying prosecutor's application for a permit to install three gasoline tanks and pumps on lands situate at the southeast corner of Shaler Boulevard and Ray Avenue, in the borough, for use in the operation of a motor vehicle service station.
The locus was situate in a "Business" district established by the local zoning ordinance passed on May 8th, 1939, which by its terms barred "public garages" from such zones, defined as "a building or space, other than a private or community garage, for the storage of motor vehicles and at which filling station service, the sale of accessories, cleaning or repairing of any kind of motor vehicle are permitted." The application for the permit was made on February 1st, 1947. It followed the issuance of a permit by the local building inspector for the construction of a building on the lands designed for use as a gasoline filling station, "pursuant" to the "provisions of the Building Code." Prosecutor acquired an option to purchase the premises on January 27th, 1947. He applied for the building permit on the 28th; and it was issued the following day. On February 17th following, he acquired title to the lands under the option. By two separate and distinct amendments of the zoning ordinance, introduced on February 18th, 1947, and adopted on the ensuing March 4th, the use of lands in residence and business zones as "a gasoline filling or oil station or a motor vehicle service station" was forbidden, and the permit fee was raised from $200 to $2,500 for each pump; and by a further amendment adopted on June 17th, 1947, all of Shaler Boulevard was zoned for residential uses and Ray Avenue was continued as a residence area.
But there is also an ordinance, adopted on May 7th, 1939, regulating and controlling "the installation of gasoline tanks and pumps and the maintenance of gasoline service stations;" and it was under this ordinance that the application in question was made. It is therein provided that no gasoline tank or pump, including such as may be intended to be used "exclusively for private purposes," shall be installed within the borough without a permit issued by the borough clerk under the sanction of the borough council, which may be refused if the council "deems such refusal to be for the general welfare or public safety or convenience."
The council found that, although "the premises are zoned for business," the adjacent lands, with the exception of one nonconforming use, are residential in character and in fact; that the proposed use will give rise to greater traffic and fire hazards and inconveniences, with a consequent deterioration of property values; that the area is traversed by school children going to and from the seat of instruction, and the suggested use would be perilous to them; and that for all of the circumstances -- these and others recited in the resolution -- it was deemed "to be for the general welfare, public safety and convenience of the public" that the permit be refused.
First, it is urged that the amended regulation is arbitrary and unreasonable, in that the prohibition against gasoline service stations extends throughout the borough except the section reserved for "industrial" uses. The point is not well taken.
A business or trade is affected with a public interest, and thus within the range of the police power, if it is in character such as is subject to control for the common good. Gasoline service stations are in this category, for the use involves the public safety, comfort and convenience in several major aspects. These factors enter largely into the determination of the location and, in some measure, the physical characteristics of the structures; and reasonable regulation of such land uses, guided by these considerations, is therefore embraced within the police power. Due ...