Goldmann, Conford and Haneman. The opinion of the court was delivered by Haneman, J.A.D.
Defendants appeal from a reversal by the Law Division of the denial by the Board of Adjustment of the Township of Lyndhurst (Lyndhurst) of plaintiff's application for a variance from the provisions of the Lyndhurst zoning ordinance.
Plaintiff owns a tract of land of an area of approximately five acres, situate in Lyndhurst and lying between the Passaic River and Riverside Avenue, at the southwest corner of Riverside and Kingsland Avenues. The lands lie within a district classified as a "Light Industrial Zone" under the zoning ordinance. That ordinance provides, inter alia:
"Article VI -- Regulations.
In a Light Industrial Zone no building or premises shall be used and no building shall be erected which is arranged, intended or designed to be used for any of the following specified trades, industries or uses:
28. Petroleum, storage in excess of 200,000 gallons.
No dwellings for more than two families shall be constructed in a light industrial zone. All dwellings erected in a light industrial zone shall be erected in conformity with the regulations laid down for the 'B' residence zone."
Plaintiff is a closed family corporation. It or its predecessor corporations, with practically identical stockholders, has owned this tract since 1929 and has there conducted a petroleum distribution business. Incident to such business it has stored gasoline and fuel oil in tanks.
Before May 6, 1958 15 petroleum storage tanks with a total capacity of 310,000 gallons, but no one of which contained over 200,000 gallons, had been erected on the aforesaid lands and were being used by plaintiff. On that date plaintiff applied to the Bureau of Fire Protection of Lyndhurst, under ordinance 1231 (fire prevention ordinance), for a permit to erect two additional tanks with a storage capacity of 600,000 gallons each. The application was denied.
On May 8, 1958 plaintiff applied to the Lyndhurst building inspector for a building permit for the construction of said two petroleum storage tanks on said premises. The application was denied. Plaintiff thereupon appealed the refusal of the building inspector to the zoning board of adjustment and sought a variance under N.J.S.A. 40:55-39(d). The notice of appeal, insofar as here pertinent, reads.
"Relief is sought under subsection (d) of N.J.S. 40:55-39 (N.J.S.A. 40:55-39(d). Under Lyndhurst Zoning Ordinance, Article VI, § 28, the appellant is permitted to erect an unlimited number of tanks for the storage of petroleum, provided that no one tank is of a capacity in excess of 200,000 gallons of petroleum. In lieu thereof, the appellant seeks permission to erect two 600,000 gallon petroleum storage tanks instead of six 200,000 gallon tanks and alleges that the relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and Zoning Ordinance."
At a hearing held by the board of adjustment on May 22, 1958, plaintiff adduced the following testimony, all of which was bottomed upon the assumption that the ordinance permitted the erection of an unlimited number of petroleum storage tanks of a maximum capacity of 200,000-gallons each.
Max P. Schiffman, comptroller of plaintiff, testified: (1) the ordinance permits an unlimited number of 200,000-gallon tanks on each plot of land; (2) two 600,000-gallon tanks would require less space than six 200,000-gallon tanks; (3) it would be more economical and safer to operate the two larger tanks than to operate the six smaller tanks;
(4) it was less costly to construct the two larger tanks than it would be to construct the six smaller tanks; (5) plaintiff could more economically and efficiently operate its business with two large tanks rather than with six small tanks; (6) plaintiff planned to install a foam system and generator for the proposed tanks -- a feature missing from tanks of 200,000-gallon or less capacity. He stated that the reason for the failure so to provide similar protection on a tank of 200,000-gallon capacity was that such tank "does not require the same protection." He denied, however, that the larger tank was more hazardous, and gave as an additional reason for the failure so to provide, that it was a question of economics, asserting that the cost of such equipment was disproportionately large in relation to the erection cost of the smaller tank.
Horace R. Bogle, a real estate expert, testified that the construction of the two 600,000-gallon tanks rather than six 200,000-gallon tanks would not affect the value of adjacent property and would, insofar as property values are concerned, be preferable to six 200,000-gallon tanks.
Frank B. Kilian, an employee of the Fire Insurance Rating Bureau of New Jersey, testified that the construction of the two proposed 600,000-gallon tanks would not increase the fire insurance rates in the neighborhood over the rate resulting from the construction of six 200,000-gallon tanks, provided the former were equipped with a "standard dike, foam system, standard vent, or things of that sort."
Numerous neighborhood residents registered their personal objections, based primarily upon the fear of additional fire hazard. Such statements were made in the nature of arguments, and not delivered under oath.
A Mr. Mangini, an owner of a home within 200 feet of plaintiff's lands, disputed plaintiff's contention that the zoning ordinance permitted the further construction of tanks with a total capacity of 1,200,000 gallons, and asserted that the ordinance restricted the lands to tanks having a total capacity of 200,000 gallons.
The board of adjustment denied the application, without giving reasons. Plaintiff thereupon filed an action in lieu of prerogative writs, consisting of nine counts. The first count appealed the decision of the board of adjustment. The remaining eight counts contested the validity of ordinance 1231.
Plaintiff's pretrial memorandum discloses the assertion of the following special reasons for a variance:
"* * * all that the plaintiff was seeking was permission to erect tanks larger than those specifically allowed, the action of the defendant Board of Adjustment must indeed be considered arbitrary, capricious and unreasonable.
The 'special reasons' advanced at the hearing before the Board of Adjustment were:
1. Two 600,000 gallon tanks would take up less room on the plaintiff's property than six 200,000 gallon tanks (Ex. P-6, p. 5).
2. The economy in their erection would as a matter of economics, warrant diking and a foam system which are not required for 200,000 gallon tanks (Ex. P-6, p. 5).
3. Additional tanks are necessary from a business standpoint to accommodate the business built up in the area (Ex. P-6, pp. 5, 6).
4. Total cost for two 600,000 gallon tanks would be $64,000 as opposed to $102,000 for six 200,000 ...