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Supermarkets Oil Co. v. Zollinger

Decided: February 8, 1974.

SUPERMARKETS OIL COMPANY, INCORPORATED, A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT,
v.
JOHN M. ZOLLINGER, BUILDING INSPECTOR, AND THE MAYOR AND COUNCIL OF THE BOROUGH OF SAYREVILLE, NEW JERSEY, DEFENDANTS-APPELLANTS



Lynch, Mehler and Michels. The opinion of the court was delivered by Lynch, J.A.D.

Lynch

This is an appeal by defendants, respectively the building inspector and mayor and council of the Borough of Sayreville (borough), from a judgment in an action in lieu of prerogative writs whereby the building inspector was ordered to issue to plaintiff a permit for erection of an automobile car wash on its property where it operates a gasoline filling station. The judgment also adjudged that (a) an automobile car wash was a permitted use in the B-3 Highway Business Zone as a "public garage," as declared in Definition No. 20 of the borough's zoning ordinance, and (b) plaintiff was not required to exhaust its administrative remedies at the municipal level before instituting its "in lieu" action in the Law Division.

On July 30, 1971 plaintiff had applied to the board of adjustment for a permit to construct a gasoline filling station and automatic car wash. However, plaintiff withdrew its application for permission to construct the car wash and, subsequently, on recommendation of the board of adjustment, the mayor and council authorized the gasoline station use.

About a year later, May 28, 1972, defendant building inspector issued a building permit to plaintiff authorizing construction of the car wash. On June 21, 1972 the mayor and council directed the building inspector to revoke the permit and he forthwith did so. Thereupon plaintiff instituted this "in lieu" action.

The basic reasoning of the trial court in directing issuance of the permit for the car wash is that such an operation is a permitted use under the borough's zoning ordinance in that it comes within the definition of a "public garage," a permitted use in a B-3 District.

That definition reads as follows:

A building or part thereof, other than a private garage, used for the storage, care or repair of motor vehicles for profit, including any sale of motor vehicles, fuels, or accessories, or where any such vehicles are kept for hire. [Sayreville zoning ordinance, Art. III, para. 20]

More specifically, the trial court held that a car wash comes within the definition because it is a facility for the "care" of automobiles.

Appellants' first contention is that plaintiff failed to exhaust its administrative remedies by failing to appeal to the board of adjustment before instituting its "in lieu" action, citing R. 4:69-5. But where interpretation of a zoning ordinance is called for, the issue is a legal one and is peculiarly suited to the judicial function, and resort need not be first had to administrative remedies. Schack v. Trimble, 48 N.J. Super. 45 (App. Div. 1957), aff'd 28 N.J. 40 (1958); Jantausch v. Verona, 41 N.J. Super. 89 (Law Div. 1956), aff'd 24 N.J. 326 (1957). Here we have an issue as to interpretation of a "public garage" as defined in the borough's ordinance, and therefore exhaustion of administrative remedies was not required before institution of this "in lieu" action.

First, it is noted that a "car wash" is not expressly mentioned as a "permitted use" under the ordinance, though many

other uses are mentioned, including automobile sales rooms and public garages. (Ordinance, Art. XI, para. 1(f)). At the time of plaintiffs application for the building permit, gasoline service stations were also ...


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