Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Conford, S.j.a.d.
The Law Division affirmed the action of the Millburn Board of Adjustment in denying an application for a recommendation to the governing body of the township that a gasoline station be permitted to be established at a designated location in a business district of the township as a "special exception" use under the terms of the local zoning ordinance. The disappointed applicant appeals.
This matter has had a rather tortuous progress before the board and the trial court. An understanding of our holding calls for fairly detailed recitation of the course of the proceedings and of the pertinent facts.
The property in question is a vacant lot, situated at the southwest corner of Woodland and Chatham Roads, together with an adjoining plot. The frontage is 161 feet on Chatham Road and about 100 feet on Woodland Road. The location is in a small Business "B" district of the community as zoned, extending about two blocks along the southerly side of Chatham Road, the other side of the road being occupied
by the tracks and Short Hills passenger station of the D.L. & W. Railroad. The railroad is on an elevated embankment precluding a view of the property here involved from the residential area north of the railroad. Directly across Woodland Road on the southeast corner of Woodland and Chatham Roads is an existing "Esso" gasoline station. There are miscellaneous stores and a postoffice in this Business "B" district. The major portion of the highgrade residential Short Hills area of Millburn is north of the railroad at this point. A smaller residential area is south of this business pocket, and the terrain declines therefrom in that general direction. A substantial area southwest of the locus in quo is taken up by a municipal arboretum and bird reservation. There is scant indication in this record that the corner property here in question is within view of many, if any, residences, except for a garden apartment nearby on Woodland Road.
The Business "B" district here involved is situated a substantial distance by road from the nearest other business district. The main business center of Millburn is situated about a mile to the east, where the Millburn station of the railroad and a considerable number of gasoline stations are to be found.
The pertinent provisions of the zoning ordinance read as follows:
"Section 1. USE. Within any business district no building or premises shall be used except for one of the following purposes:
(h) Recognizing the necessity for public garages, public parking space, automobile fuel filling stations , riding academies and public stables in business districts, and at the same time that they may be inimical to the public health, safety and general welfare of the community if located without due consideration of conditions and surroundings, the following procedure is ordained for their establishment in such districts:
An application for a permit for a[n] * * *, automobile fuel filling station, * * * shall be made first to the Board of Adjustment, which 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 to the Township Committee that a permit be granted for a * * *, automobile fuel filling station, * * *, if in its judgment said * * *, automobile fuel filling station, * * *, 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, and in case such recommendation shall be approved, and all statutory and other municipal requirements shall be complied with, the administrative officer in charge of granting permits shall forthwith issue a permit for such structure or use subject to such other requirements or restrictions as the governing body may see fit to impose." (Emphasis added)
It was pursuant to these provisions that plaintiff made application to the Board of Adjustment for a favorable recommendation for leave to erect a gasoline station in accordance with a set of plans attached thereto. A hearing on the application was conducted by the board August 9, 1960. The proceedings are reflected by minutes, no stenographic transcript having been made. A member of the board, Mr. Brown, disqualified himself in the matter because he was a shareholder of the applicant corporation. A district sales representative of the plaintiff described the proposed station as one of superior specifications. It would have access both from Chatham Road and Woodland Road. After some cross-examination of the witness by or on behalf of nearby property owners relative to details of ...