On certification on our own motion from the Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Wachenfeld, Burling, Jacobs and Weintraub. For reversal -- None. The opinion of the court was delivered by Vanderbilt, C.J.
[23 NJ Page 477] We have certified this appeal on our own motion to bring before us for review the judgment of the Law Division of the Superior Court in favor of the plaintiffs, setting aside the action of the Township Committee of the Township of Moorestown in denying a permit for the construction of a gas station and holding invalid an ordinance regulating the use, storage, sale and disposal of gasoline and other inflammable materials.
The plaintiffs, Dr. Sidney Denbo and his wife Sylvia, are the owners of a building lot fronting on Main Street in the Township of Moorestown, Burlington County. In May 1955 they entered into an agreement with the plaintiff, Tidewater Oil Company, whereby the oil company agreed to purchase the lot in question upon the condition that the Denbos procure the necessary permit for the establishment of a gas station on the property.
The township zoning ordinance, adopted in 1948, permits such use by express provisions, but a permit must be obtained pursuant to another ordinance adopted by the township in 1928, which provides that no person shall erect or operate any building and equipment for the storage and sale of gasoline, fuel oil, kerosene and other highly inflammable or combustible liquids or materials without first obtaining a permit to do so from the township committee. The 1928 ordinance also sets forth the requirement that as part of the application for the permit the applicant must show that the building and equipment will be of fireproof construction and show also the particulars of the proposed location of the building and equipment, etc. Section 5 of that ordinance provides that:
"* * * after public hearing the Township Committee shall grant or refuse such permit as they shall deem proper for the protection of life and property from fire, explosions and other dangers."
Section 8 of the ordinance provides that it was passed "under and in accordance with Chapter 152 of the Laws of 1917," an enactment known as the Municipal Home Rule Act.
N.J.S.A. 40:48-1, which is part of the Municipal Home Rule Act, provides in part:
"40:48-1. Ordinances; general purpose
The governing body of every municipality may make, amend, repeal and enforce ordinances to:
Inflammable materials; inspect docks and buildings. 14. Regulate the use, storage, sale and disposal of inflammable or combustible materials, and to provide for the protection of life and property from fire, explosions and other dangers; to provide for inspections of
buildings, docks, wharves, warehouses and other places, and of goods and materials contained therein, to secure the proper enforcement of ...