Schettino, Hall and Gaulkin. The opinion of the court was delivered by Schettino, J.A.D.
Appeal is taken from a Superior Court, Law Division, judgment in favor of defendant arising out of a proceeding in lieu of prerogative writs to compel the governing body of defendant township to issue to plaintiff a building permit allowing the construction of a gasoline station on plaintiff's recently acquired property. The trial court dismissed plaintiff's complaint on the basis that a certain amending ordinance, adopted subsequent to the institution of this action and barring all gasoline stations in the particular zone within which plaintiff's property is located, was valid and dispositive of the case.
The facts are substantially undisputed and are as follows. On April 3, 1957 plaintiff contracted to purchase certain premises on River Vale Road, in the Township of River Vale, for the sum of $33,500. The contract recited that it was subject to plaintiff's procurement of permission from the municipality "and/or its duly authorized boards and officials to build, erect and maintain a gasoline filling station on the premises covered by this agreement." The agreement further recited:
"The Purchaser agrees that it will make immediate application and take all necessary steps to secure such permission from the Mayor and Council, the Planning Board, the Board of Adjustment and/or the Building Inspector of the Township of River Vale; but shall not be bound to prosecute this case before the courts.
In the event that such permission is not granted within sixty (60) days of the signing of this agreement, this contract shall become null and void; and all moneys paid the Seller hereunder shall be returned to the Purchaser."
The premises consist of a tract of land with a frontage of about 171 feet, a depth of about 566 feet on the north side line, a rear or easterly line of about 170 feet, and a depth of about 457 feet on the south side line. The tract lies partly within the "C" commercial or business district and partly within the "A" residence district. Plaintiff seeks to employ only the area within the "C" district for the service station.
The surrounding area within the "C" district consists generally of business properties. Immediately to the north of plaintiff's property are located stores, including a supermarket, a gasoline station and a large parking lot adjoining plaintiff's lot. To the south there is a brick two-family dwelling, partially in the "C" district, and for an additional 100 feet southerly the property on the east side of River Vale Road is in a "B" residence district. The property on the west side of River Vale Road, opposite plaintiff's property, is zoned "C" commercial district for a depth of 200 feet and extends some 1,200 feet north. In general, plaintiff's property is in a commercial environment.
Pursuant to the zoning ordinance then in effect plaintiff duly applied to the board of adjustment of River Vale for a permit to erect a gasoline station on the entire premises. After a hearing held on April 25, 1957, the board of adjustment, on May 23, 1957, approved the application in part and recommended to the township committee that it grant plaintiff a permit subject to numerous conditions. It limited its favorable recommendation to that portion of plaintiff's entire premises which was located in "C" district. On June 6, 1957 the township committee voted to submit the question of the use of the area lying within the residential district to the planning board. On June 13, 1957 the planning board recommended that plaintiff's property within the residential district remain as such. Plaintiff accepted this condition. However, on June 20, 1957, at a special meeting of the township committee, the recommendation of the board of adjustment was rejected and plaintiff's application for a permit was denied. Plaintiff alleges that this meeting was called without notice to it or an opportunity to be heard.
On June 3, 1957 plaintiff's time to obtain the permit allowed by the contract expired, but nevertheless plaintiff completed the contract and purchased the premises.
In the trial court plaintiff argued that the township committee's duty after the approval by the board of adjustment was merely ministerial, i.e. , to grant the permit. It thus brought this action in lieu of prerogative writs for an order
in the nature of mandamus directing the township committee to issue the permit.
Prior to April 3, 1957, the zoning ordinance in effect provided, so far as is applicable herein, as follows:
During the pendency of this action the township committee, on August 1, 1957, passed an amendment to the zoning ordinance, affecting the "C" district and in effect barring the erection of any additional gasoline station therein. This amendment provided in part that "No garage, gasoline or filling station shall be permitted in said district."
In its complaint plaintiff charged that the refusal of the township committee to approve the recommendations of the board of adjustment was "unreasonable, arbitrary and capricious; and further was improper, illegal, and not in conformity with the provisions of the statute * * *." The answer set forth the amendment as a bar to the suit, alleging it to be a valid exercise of the police power. No reply was filed. In the pretrial order plaintiff attacked the amendment broadly and without specification, ...