[56 NJSuper Page 312] The plaintiff, Socony Mobil Oil Co., Inc., instituted this proceeding in lieu of prerogative writs
challenging the validity of a provision of the zoning ordinance of the defendant, Township of Ocean, which prohibits gasoline filling stations within 1,500 feet of each other. Plaintiff also seeks a review of the action taken by the Board of Adjustment and Township Committee of the Township of Ocean in refusing to grant to it an exception under the zoning ordinance to allow the use of its premises as a gasoline filling station.
The plaintiff holds an option to lease a lot located at the northwest corner of Norwood and Roosevelt Avenues in the Township of Ocean, County of Monmouth, with a frontage of 150 feet on Norwood Avenue and 108.3 feet on Roosevelt Avenue. A gasoline filling station, among other uses, is permitted on this lot according to section 5(p-2) of the township's zoning ordinance. However, these uses, as enumerated in section 5(p-2) of the ordinance, are allowable only by means of an exception according to section 5(p-3).
The procedure to be followed by an applicant to obtain a permit for a use classified as an exception is set forth in section 5(p-4), which provides that an application:
"* * * shall be first made to the Board of Adjustment who shall hear the application 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 the Board of Adjustment may thereafter recommend in writing to the Township Committee that a permit be granted for a use in accordance with the stipulations of this ordinance, if in its judgment the use as it is proposed to be located, will not be detrimental to the health, safety and general welfare of the community and is reasonably necessary for the convenience of the community.
Whereupon the Township Committee may, by resolution approve or disapprove such recommendation. * * *"
Accordingly, plaintiff applied to the board of adjustment for an exception to construct a gasoline filling station on the property in question. The board held a hearing on this application on March 13, 1958, and on March 27, 1958 it
passed a resolution recommending to the township committee that the plaintiff's application for an exception be denied. On April 21, 1958 the township committee, adopting the recommendation of the board of adjustment, passed a resolution denying plaintiff's application.
The only reason given by the board of adjustment in its resolution recommending the denial of the application was that "the proposed filling station would be within 1,500 feet of a presently existing filling station in violation of the Zoning Ordinance of the Township of Ocean." The pertinent provision of the ordinance is section 8(B)(b-3)(a), which reads as follows:
"No Motor Vehicle Salesroom, Filling Station, or other establishment where motor fuel, lubricating oils or motor accessories are stored or motor services are rendered, may be located within 300 feet of any property upon which a church, school, hospital, institution, theatre, or public assembly seating over fifty persons, is located, nor may a filling station be within 1,500 feet of another filling station , and said distances shall be measured on a straight or air line from the outer boundary or property line in the one instance to the nearest property or boundary line." (Emphasis supplied)
Plaintiff contends that the provision of this section of the zoning ordinance which prohibits filling stations within 1,500 feet of each other is arbitrary, capricious, unreasonable, discriminatory, an unjust restraint on free trade, and unrelated to the public health, safety, welfare or morals of the community; and prays that a judgment be entered reversing the action of the Board of Adjustment and the Township ...