For reversal and remandment -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J.
Plaintiff, Reinauer Realty Corporation, applied under the zoning ordinance of the defendant Borough of Paramus for a special exception use to permit the construction of a gasoline station. After the Mayor and Council of the borough had rejected the favorable recommendation of the Board of Adjustment, this suit in lieu of prerogative writ was instituted. The Law Division decided that the action of the governing body was arbitrary and directed the issuance of a building permit subject to compliance by plaintiff with certain ordinance requirements. The Appellate Division reversed and this court granted the subsequent application for certification. 33 N.J. 487 (1960).
Reinauer is the contract purchaser of an almost triangular shaped lot located at the intersection of Route 17 and Powers Drive in Paramus. Route 17, a state highway, is a major traffic artery in Bergen County. The property contains 1.19 acres, with a frontage of almost 276 feet on the highway and of almost 264 feet on Powers Drive. A brook runs along the other side of the triangle for about 354 feet. Thus, Route 17 is one side of the triangle, the brook is the other, and Powers Drive is the base. The Water Policy Commission has ruled that no structure may be erected within 35 feet of the center line of the brook. The Garden State Parkway is less than 700 feet in a general easterly direction from the intersection of the brook and the corner of the lot at Powers Drive.
The zoning ordinance has assigned the property and the surrounding area to the D or general business district. Gasoline stations are permitted in the district as a "special exception use." Such use is defined by the ordinance to be one for which the Board of Adjustment may recommend the granting of a permit to the Borough Council. For a comprehensive explanation of that type exception, see Tullo v. Millburn Tp., 54 N.J. Super. 483, 490-491 (App. Div. 1959). More specifically in this respect, the ordinance provides:
"* * * The Board of Adjustment shall also have original jurisdiction and power to recommend to the Mayor and Council, after advisory report by the Planning Board, that a permit be granted for a special exception use on a particular site, in accordance with the provisions of this ordinance, without a finding of practical difficulty or undue hardship, but subject to the guiding principles, standards, conditions and safeguards contained in this section 20-C, to the extent applicable in the manner provided by law."
In this connection plaintiff calls our attention to another section of the ordinance which says that the authorized special exception uses in D district "shall be permitted subject in each case to approval by the Board of Adjustment after advisory report by the Planning Board * * *." On the basis of this language, the contention is advanced that the Board of Adjustment has the power to grant such a use after a favorable report from the Planning Board, and that the governing body cannot reject a recommendation by it favorable to the property owner. The language referred to does seem to conflict with the specific definition of a special exception use appearing in the ordinance and with the provision quoted at length above which is set out therein under the legend "Grant of Power," both of which restrict the authority of the Board of Adjustment to a recommendation to the Mayor and Council. In our judgment, the best that can be said for plaintiff's argument is that an ambiguity exists as to the extent of the delegation, which under ordinary tenets of construction should be resolved
against the existence of the unqualified power. This view is fortified by the fact that both municipal bodies construed the ordinance as conferring recommendatory authority only. And see Schmidt v. Board of Adjustment, Newark, 9 N.J. 405 (1952).
When the application for the special exception use was made, it was referred by the Board of Adjustment to the Planning Board for the preliminary advisory report commanded by the ordinance as to "the location of such use in relation to the needs and growth pattern of the Borough and, where appropriate, with reference to the adequacy of the site area and the arrangement of buildings, driveways, parking areas, off-street truck loading spaces, and other features of the site plan." Pursuant to the reference, the Planning Board reviewed the matter and determined that:
"the parking area is adequate, that the driveways are convenient and conducive to safe operation of motor vehicles, and the fuel pumps, planting and curbing conform to Borough Ordinances. The vehicle entrances and exits are clearly visible.
In addition the Planning Board has determined that the proposed location will serve the needs and growth pattern of the Borough."
Thereupon a resolution was adopted unanimously recommending approval of Reinauer's application, subject to some incidental conditions respecting the posting of a bond, payment of certain fees and compliance with all applicable ordinances.
The ordinance lays out in considerable detail the nature of the hearing and the findings to be made by the Board of Adjustment as a condition to recommendation of a special exception use. A "special finding [must be made], supported by evidence produced at a public hearing in the manner provided by law, that such use will not be detrimental to the character of the neighborhood." Further, a determination must be made (1) that "there is appropriate provision for access facilities adequate for the estimated traffic from public streets and sidewalks so as to assure public safety and to avoid traffic congestion," and that the entrances
and exits shall be clearly visible from the street and not within 75 feet of a street intersection; (2) that there are fully adequate parking areas, the layout of which areas and interior driveways, is convenient and conducive to safe operation; (3) that suitable provision is made for certain planting or fencing along side and rear lot lines, if the lines are adjacent to residential uses or districts; (4) that the lighting facilities provided meet the conditions specifically prescribed in the ordinance; (5) that no part of any entrance or exit is connected with a public street at a point within 300 feet of certain types of buildings or places of public assembly; (6) that no part of any entrance or exit is less than 100 feet from any boundary line of a residential district; (7) that no part of any building or filling pump, gasoline storage tank, car lift or other service appliance will be within 100 feet of any residential district boundary line; (8) that no gasoline or oil pump, oiling or greasing mechanism or service appliance will be located within 20 feet of any street line; (9) that the storage and use of flammable gases or liquefied petroleum gases will be installed according to the specified regulations; and (10) that the location of the special exception use is appropriate to the character of the particular part of the D district "and that it will be advantageous to the interests and convenience of the neighborhood." All of these conditions are necessarily subject to the paramount requirements imposed by N.J.S.A. 40:55-39; i.e., that the relief sought is not permissible unless it 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."
The matter was set down for hearing before the Board of Adjustment and all property owners within 200 feet of the Reinauer property were notified. None of these owners appeared or objected to the application. At the hearing plaintiff was represented by a real estate broker. The only record submitted to us as to what took ...