For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Schettino, J. Hall, J. (concurring). Hall, J. concurring in result.
Plaintiff filed a complaint in lieu of prerogative writ challenging (1) the constitutionality of Article XVI, paragraph 2E, of the Madison Township (Township) zoning ordinance, and (2) the denial by the Board of Adjustment (Board) of a special exception permit to construct a gas station. The Township intervened as a party defendant.
In an unreported opinion, the Law Division upheld the validity of both the ordinance and the Board's action. Plaintiff appealed and we certified the matter before argument in the Appellate Division. R. 2:12-2.
Plaintiff is a purchaser under an option to buy land situated in Madison Township on which it desires to build a gas station. The lot is 233 feet away from an existing gas station and it lies in a "C-3 Commercial Zone," in which retail stores, business and professional offices, restaurants, automobile salesrooms, and parking lots are permitted. Gas stations are also allowed in this zone by way of special exception.
The section of the ordinance here challenged provides in relevant part:
E. Gasoline filling stations, Public garages and auto repair shops may be permitted in a C-1, C-2, or C-3 Commercial Zone provided that the following standards and conditions are complied with:
2. The proposed use shall be located on a lot * * * the lot lines of which are located not less than * * * two thousand (2000) feet from an existing gasoline filling station, public garage or auto repair shop.
6. The proposed use shall in no way be detrimental to the health, safety and general welfare of the Township nor shall it result in a depression of any established property values in the general area.
In accordance with the above ordinance, plaintiff applied to the Board for a special exception permit and for relief from the terms of the ordinance. Hearings were held on March 18, 1968, and April 5, 1968. Plaintiff appeared before the Board and called three witnesses to testify.
The first witness, John Hall, testified that he was the manager of the real estate department of Phillips Petroleum Co. and supervised the selection of sites for future gas stations. He stated that plaintiff's lot was a good location in view of the number of homes and apartments in the area and the normal traffic flow. Based on these factors, he concluded that there was a need for the service station, that the traffic would not be increased, and that the area would be "generally enhanced."
Hall conceded that his study of the area was made in 1966 and that a considerable amount of construction had occurred since that time. There were now three homes within 200 feet of the station. He also acknowledged that the gas tanks would have to be filled more than once a week. Accordingly, a delivery truck carrying 8,000 gallons of gasoline would be parked at the station at sometime during a given week. Moreover, he stated that there was no fire hydrant in the area. In regard to the traffic flow, he indicated that a study he conducted revealed a total of 700 cars per day passing in front of the proposed station at peak hours.
The next to testify was Raymond Oothout, the construction engineer for Phillips Petroleum Co. who had prepared the plans for the station. He explained that the station would be an "up-to-date ranch-style gable-roofed building with brick veneer face which * * * [would] lend itself well with the newer structures in the area." Moreover, he testified that the storage tanks and the size and angle of ingress and egress conformed to presently accepted underwriting codes and petroleum industry standards. In ...