This is an action in lieu of prerogative writ, plaintiff seeking to set aside a resolution of the governing body of the City of Clifton which denied it a zoning variance recommended by the board of adjustment. As collateral relief, it seeks the issuance of a building permit for a gasoline station and renewal permits for the maintenance and operation of gasoline pumps.
There is no substantial dispute of fact. Briefly, plaintiff, on November 20, 1946, entered into an agreement to purchase property at the northwest corner of Clifton and Getty Avenues, Clifton, zoned as Business "B", which contract set forth plaintiff's intention to use said premises as a gasoline service and filling station and was expressly conditioned upon plaintiff's ability to secure all necessary permits and licenses to erect, install, maintain and operate said station. Pursuant to the provisions of an ordinance (No. 2040), which prohibited motor vehicle service stations in business districts without permission from the municipal council, plaintiff, on February 5, 1947, made such application to said council; the same ordinance required approval by the chiefs of the fire and police departments, which certificates plaintiff obtained.
On February 11, 1947, the ordinance (No. 2040) was invalidated by the Court of Errors and Appeals, so there was no zoning prohibition in force and no reason for plaintiff to do more than submit its application for a building permit direct to the building inspector, accompanied by the necessary tank and pump permits.
On February 18, 1947, the municipal council, after public hearing, adopted a resolution approving plaintiff's application "for permission to install three 2,000 gallon tanks and four pumps, for a drive-in gasoline station on the premises known as the northwest corner of Clifton and Getty Avenues, Clifton, New Jersey (Business Zone)" (such permission being required under licensing ordinance No. 151), and on February 19, 1947, plaintiff was issued three permits for the installation of public gasoline tanks and four permits for the operation and maintenance of gasoline pumps, paying the fees therefor, all of which were annually renewed until April 1, 1950, when the clerk refused further renewals pending termination of litigation.
On February 26, 1947, plaintiff received permission to break the curb in front of the premises and on the same day applied to the building inspector for a building permit, submitting plot and building plans, but the building plan was rejected for the reason that it did not comply with the provisions of the building code, in that the proposed walls were but eight inches in thickness, whereas the code required 12-inch walls. The inspector testified that in view of the council approval, he would have issued the permit as a matter of course if the building plan had conformed to the code and no federal restrictions were effective. The inspector issued a certificate approving the plot plan with regard to curb cuts, driveways, building location and tanks, but expressly set forth that "no actual building permit will be issued until plans have been examined by me and are made to coincide in every respect to our building laws and ordinances and a Civilian Production Authority permit is submitted for said building."
Construing this qualified certificate of plot plan approval as a building permit, plaintiff took title to the premises on March 10, 1947, and the following month cut curbs and installed tanks. Up to this point, there was no valid zoning prohibition against gasoline stations in business zones, but on March 6, 1947, the municipal council amended the zoning ordinance and prohibited motor vehicle service stations in said
zones -- it follows that no building permit for such use could thereafter issue without the grant of a variance by the governing body after appeal to the board of adjustment under the ordinance.
A municipal ordinance (No. 2390) was passed October 21, 1947, prohibiting the grant of permits for a gas tank or pump unless there has been a full compliance with all ordinances, and a new zoning ordinance covering the entire municipality, which also prohibited gasoline service stations in business zones, was passed on January 3, 1950.
Plaintiff never sought permission for construction from the Civilian Production Authority and, although the federal regulations restricting civilian construction expired on June 1, 1947, except for the renewal of its pump permits, took no further action until April, 1949, when it again applied for a building permit and presented plans. The application was refused because the building plans did not comply with the building code. Corrections and suggested changes were made in the plans and the application was again submitted to the building inspector on August 12, 1949, when a permit was denied by reason of zone variance.
On February 23, 1950, plaintiff applied to the zoning board of adjustment which, after public hearing, recommended to the governing body that plaintiff's request for a variance to permit the erection of a gasoline service station be granted, but the municipal ...