Eastwood, Bigelow and Freund. The opinion of the court was delivered by Freund, J.s.c.
This appeal is from a judgment of the Law Division upholding a resolution of the defendant, City of Clifton, denying a recommendation of the board of adjustment to permit the erection of a gasoline service station on property owned by the plaintiff at the corner of Getty and Clifton Avenues, a business district, in said city.
On November 20, 1946, the plaintiff, Sun Oil Company, contracted to purchase the premises in question, expressly conditioned upon obtaining permission of the municipality to use the premises as a gasoline service station. This entailed obtaining permits for installation of gasoline tanks and pumps under Licensing Ordinance No. 151 of the municipality and a permit to erect a gasoline service station building under the provisions of the municipal zoning ordinance.
On February 18, 1947, the municipal council after public hearing adopted a resolution approving the plaintiff's application to install three gasoline tanks and four pumps on the
premises and the following day upon payment of the required fees these permits were issued by the city clerk. The pump permits were annually renewed until April 1, 1950, when the clerk refused further renewal because the matter was in litigation.
When the contract for the purchase of the property was executed, Zoning Ordinance No. 2040 was in effect which prohibited motor vehicle service stations in business districts, except by permission of the municipal council. This ordinance was, on February 10, 1947, invalidated by the Court of Errors and Appeals in Finn v. City of Clifton , 136 N.J.L. 34, because it failed to provide a statutory method of appeal, R.S. 40:55-30 et seq. On February 26, 1947, the 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, which was denied because the building plan did not comply with the provisions of the building code as to thickness of walls. The building inspector issued a certificate approving the plot plan, but expressly stating "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." Federal regulations then in effect prohibited the use of certain building materials for non-essential building, but such regulations expired June 1, 1947. The plaintiff took title to the premises on March 10, 1947, and the following month cut curbs and installed gasoline tanks. At that time there was no valid zoning prohibition against service stations in business zones. However, on May 6, 1947, the municipal council adopted Zoning Ordinance No. 2347, prohibiting motor vehicle service stations in business districts. Thereafter, no building permit for such use could issue unless the governing body authorized a variance.
The plaintiff never applied to the Civilian Production Authority for the required certificate and although the restrictions expired in June, 1947, it did nothing in furtherance
of its building plans until April, 1949, when it again submitted plans to the building inspector, but they did not comply with the building code and the application for a permit was denied. The application was renewed on August 12, 1949, but was denied because of the prohibitory provisions of Zoning Ordinance No. 2347. Six months later, the plaintiff on February 23, 1950, applied to the board of adjustment for a variance. On June 22, 1950, the variance was recommended to the municipal council, which, however, denied the recommendation.
The plaintiff thereupon instituted this proceeding, which resulted in a judgment sustaining the action of the defendant.
The appellant does not attack the validity of the pertinent zoning ordinance, but argues (1) that it had a vested right to a building permit, and (2) that the action of the defendants in refusing to grant the variance was arbitrary, capricious and unreasonable.
The law is settled that a municipality may not revoke a building permit granted to an applicant who, upon the faith of it, enters into contractual relations with respect thereto and expends moneys in the prosecution of the work, unless it appears that such permit was obtained by fraud or deceit. Freeman v. Hague , 106 N.J.L. 137 (E. & A. 1929). If a valid permit is issued, then a vested right is acquired ...