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Value Oil Co. v. Town of Irvington

Decided: July 29, 1977.

VALUE OIL COMPANY, A NEW JERSEY CORPORATION, PLAINTIFF,
v.
TOWN OF IRVINGTON, A MUNICIPAL CORPORATION, AND ZONING BOARD OF ADJUSTMENT OF THE TOWN OF IRVINGTON, DEFENDANTS



Marzulli, J.s.c.

Marzulli

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 ยงยง 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

of Adjustment.

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 ...


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