The issue presented by plaintiff's complaint in lieu of prerogative writs is whether a special exception permit must issue when an applicant demonstrates compliance with all enumerated criteria of a zoning ordinance.
On January 23, 1976 plaintiff Value Oil Company made application for a special use permit*fn1 to the Zoning Board of Adjustment of the Town of Irvington for permission to use a premises in the Town of Irvington as a gasoline service station.
Authority for a special exception provision in a municipality's zoning ordinance is derived from N.J.S.A. 40:55-39.*fn2 This statute provides in pertinent part:
The board of adjustment shall have the power to:
b. Hear and decide, in accordance with the provisions of any such ordinance, requests for special exceptions or for interpretation of the map or for decisions upon other special questions upon which such board is authorized by any such ordinance to pass.
No relief may be granted or action taken under the terms of this section unless such relief 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 specific provisions of the zoning ordinance of Irvington relevant to the case at bar are §§ 903.2 and 904.7 et seq. These sections provide:
903.2 The Planinng Board within fifteen (15) days after re-
view of the plans by the Planning Board shall submit to
the Zoning Board of Adjustment its comments regarding
the adequacy of the site plan and its conformance and
effect on the overall master plan of the Town. The Zon-
ing Board shall not take action on the permit until the
Board receives written comments from the Planning Board
or after the fifteen (15) day period, whichever is first.
The following uses may be permitted provided a special
use permit is obtained from the Zoning Board of Adjust-
ment under the terms and specifications herein. Whereas
the necessity for certain specific uses is recognized and
at the same time appreciating the fact that they or any
one of them may be, or become, inimical to the public
health, safety, and general welfare to the community if
located without due consideration to the existing condi-
tions and surroundings, the following standards and pro-
ceedings are hereby established, which are intended to pro-
vide the Zoning Board of Adjustment with a guide for the
purpose of reviewing certain uses not otherwise permitted
in this Ordinance. The Zoning Board of Adjustment shall
review and administer applications for the following uses
according to procedures spelled out for the Zoning Board
904.7 Gasoline Service Stations: Motor vehicle service stations
may be permitted in the B-2 Local Business District, M-1
Heavy Industrial Manufacturing District and M-2 Light
Industrial Manufacturing District with a Special Use Per-
mit provided the following standards are observed:
904.7-1 In addition to the information required in the site plan
as spelled out in Section 503 of this Ordinance, the
site plan shall also show the number and location of
fuel tanks to be installed, the dimensions ...