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Shell Oil Co. v. Board of Adjustment of Township of Hanover

Decided: November 5, 1962.


For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Haneman, J.


The Town of Morristown (Morristown), pursuant to R.S. 40:8-1, et seq., maintains and operates an airport on some 235 acres of land situate within the corporate limits of the Township of Hanover (Hanover). The airport is located in the southwesterly corner of Hanover at the Florham Park-Morristown lines and is bounded on its southerly side for approximately one-third of a mile by Columbia Road (also known as South Orange Avenue), a two-lane highway in 1958 (now a four-lane highway), connecting Florham Park with Morristown and points east. A 22 foot wide private access road running into the airport proper, known as Airport Road, intersects Columbia Road midway in this frontage. Columbia Road is also intersected approximately 300 feet west of the westerly airport property line and in the direction of Morristown by Park Avenue, a two-lane through highway running in a northerly-southerly direction. In 1956 Hanover adopted a revised zoning ordinance classifying the lands along the northerly and southerly sides of Columbia Road, and for some distance along Park Avenue north and south of Columbia Road, as an Office Building and Research Laboratory district (Office Zone). The airport frontage was so classified to a depth of 150 feet. Subsequent to the trial herein, the Office Zone on the airport property was increased to 400 feet in depth. The balance of said airport lands was placed in a Residential AA Zone.

In December 1958, Morristown leased a tract of land to Shell Oil Company (Shell) for the purpose of erecting a

gasoline service station. This land was bounded on two sides by the northerly line of Columbia Road and the easterly line of Airport Road and of the approximate dimensions of 200 feet in frontage by 150 feet in depth. Shell's application to the Hanover Building Inspector for a building permit was denied. Shell thereupon applied to the Hanover Board of Adjustment for a variance. The Board of Adjustment denied the application on the grounds that, (1) the zoning ordinance specifically prohibited Shell's proposed use in the Office Zone, and (2) neither hardship nor special reasons had been demonstrated. Shell then commenced an action in lieu of prerogative writs, joining the Board of Adjustment and the Building Inspector, wherein it sought a reversal of the action of the Board of Adjustment and a direction to the Building Inspector to issue the building permit. Subsequent to the filing of answers, Morristown intervened, and having joined Hanover as a defendant, sought by way of additional relief a judgment declaring that the ordinance was invalid and unenforceable insofar as Morristown particularly was concerned because of the immunity granted by R.S. 40:8-1, and, generally, because the creation of the Office Zone was an arbitrary, capricious and unreasonable exercise of the zoning power. Hanover filed an answer. A trial ensued. The trial court found and entered judgment for defendants. The plaintiffs appealed to the Appellate Division.

The arguments before the Appellate Division were directed solely to the alleged immunity of Morristown and the unlawful exercise of the zoning power. The contest of the action of the Board of Adjustment apparently was abandoned. The Appellate Division reversed the judgment of the trial court and having decided favorably for the plaintiffs upon the immunity issue in the following language:

"We find the use here proposed by plaintiffs to be a proper accessory to an airport, appropriate for the present and reasonably prospective needs of the airport * * *,"

did not pass upon the reasonableness of the zoning ordinance. See 71 N.J. Super. 532. Defendants petitioned this court for certification which we granted. 37 N.J. 134. The arguments here as well as before the Appellate Division are restricted to the relief sought by Morristown and we shall therefore limit our consideration accordingly.


Plaintiffs argue first, that the airport lands, an exclave of Morristown, are immune from any zoning control by Hanover through the instrumentality of the specific provisions of R.S. 40:8-1. The solution of this problem, therefore, requires a construction of that statute which, so far as here pertinent, reads:

R.S. 40:8-1.

"The governing body of any county and the governing body of any municipality, or either of them, may acquire by gift, grant, purchase, condemnation or in any other lawful manner real estate or any right or interest therein for airport purposes and so use lands theretofore acquired for other public purposes and being used for airport purposes and erect thereon and maintain buildings for the airport purposes * * *."

N.J.S.A. 40:8-2.

"The governing body of any municipality may acquire, establish, construct, own, control, lease, equip, improve, maintain, operate and regulate airports or landing fields for the use of airplanes and other aircraft within or without the limits of such municipality and may use for such purpose or ...

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