This action is brought in lieu of prerogative writ against the Board of Adjustment of the City of Newark and C. Alfred Bates, who is secretary of the Board of Adjustment and Zoning Officer for the City of Newark and the proper person to whom to apply for a permit when the zoning ordinance is pertinent to the construction the property owner desires to make. The plaintiff is the owner of premises at 243-249 Chancellor Avenue, Newark, which under the provisions of the zoning ordinance is located in a first business district. The property is vacant and the plaintiff desires to erect a gasoline station including a lubritorium. Under the provisions of the zoning ordinance this character of construction is defined as a public garage, so in effect the plaintiff is applying for a permit to erect a public garage.
The proceedings were instituted on June 14, 1949, by an application to the Board of Adjustment for the erection of the station. Mr. Bates as the zoning enforcement officer on June 15, 1949, held that the application to him was contrary
to the provisions of section 6 of the zoning ordinance of the City of Newark. There was a further application by way of appeal from Mr. Bates' determination, filed on June 15, 1949, asking the Board of Adjustment for a variance from the terms of section 6 of the zoning ordinance so as to permit the erection of the building on the premises in a first business district. On these two applications three of the five Adjustment Board Commissioners sat and heard testimony. They also examined the property and heard argument. Evidence in opposition to the application generally covered objections that: there were two other corners that had gas stations facing the corner property owned by plaintiff; there was a bus stop in front of the premises for which the application was made; both streets were heavy traffic streets; a school was nearby (but not so near as to raise the bar of the zoning ordinance); a new filling station would raise additional traffic hazards as it has more than one entrance for cars crossing the sidewalk; and there was a residential zone adjoining the property. Some of the grounds urged by the plaintiff were: the plans called for an up-to-date station with inside lubritorium for washing and servicing cars, whereas the other stations were not modern and did not have these advantages, and it was an undue hardship on the plaintiff as the property was best suited for the proposed purpose.
The Board at a meeting on August 2, 1949, attended by all five Commissioners, rendered their decision by a vote of 3 against the petitioners and 2 not voting as they had not heard the case. The action they took was to reject a motion, which was as follows:
"A motion has been made and seconded that the application for the erection of a gasoline station, including lubritorium bay and bay for car washing (not automatic car washing) at 243-249 Chancellor Avenue for a period of eight years be recommended to the Board of Commissioners."
Pursuant to this resolution the Board entered an order as follows:
"It is on this 2nd day of August, 1949, decided and determined that the Zoning Ordinance of the City of Newark so far as it relates to the structure or use applied for is reasonable and in accordance with the Zoning Laws of the State of New Jersey, and the appeal is hereby dismissed."
I would interpret this finding to be a final determination against the petitioner.
It will be necessary to examine the ordinance of the City of Newark and the previous decisions with regard to the effect of the Board's determination. The original ordinance of the city, as I understand it, prohibited the erection of public garages within the city. It was a considerable time ago decided in the case of First Church, &c., v. Board of Adjustment of The City of Newark, N.J. , 127 N.J.L. 325 (Sup. Ct. 1941), and affirmed in 128 N.J.L. 376 (E. & A. 1942), that a zoning ordinance which excluded stations for the sale of gasoline from all parts of the city was invalid and not within the confines of the constitutional amendment permitting zoning and the statutes thereafter enacted. Following this decision the zoning ordinance of the city was amended and section 10 was enacted, paragraph 1 of which applies in the present case. (Paragraph 2 is a section with which we are not concerned in this matter.) Paragraph 1 reads as follows:
"Since gasoline or oil stations, automobile filling and cleaning stations and public garages, while necessary, may be inimical to the public safety and general welfare if located without the due consideration of conditions and surroundings, no permit therefor shall be issued except upon application first made to the Board of Adjustment, which is directed to hear the same in the same manner and under the same procedure as the board of adjustment is empowered by law and ordinance to hear cases and make exceptions to the provisions of a zoning ordinance, and empowered to recommend in writing to the Board of Commissioners that a permit for such use be granted, if, ...