Is an ordinance prohibiting the erection of a gasoline service station within 500 feet of an existing gasoline station constitutional? And if so, was the decision of the board of adjustment to deny this application solely because it violated said ordinance arbitrary, unreasonable and capricious?
Exxon Company applied to the board of adjustment for a variance to erect a gasoline service station on vacant property
at the southeast corner of a high traffic intersection at U.S. Route 202 and North Finley Avenue, Bernardsville, New Jersey. The lot is zoned C-1, commercial district, which permits a variety of "business uses of a retail sales and service type" and also allows several specific conditional uses, including that of "public garages," which are defined to include "motor vehicle service or filling stations."
The ordinance provides that a conditional use shall be approved provided it will not be detrimental to the public health, safety and general welfare and, in the case of "public garages," complies with a series of ten restrictions and conditions. Exxon complied with all of them except the tenth restriction which is that:
[n]o gasoline filling station may be erected within 500 feet of an existing gasoline station. [§ 12:19.26]
The area abounds with commercial activity. A contiguous lot on the same block has a large building used for bowling and recreational purposes. The northeast corner of the intersection is occupied by an Amoco service station, the northwest corner by a dry cleaning building and the southwest corner by a colonial building recently approved for conversion into a small hotel to contain less than fifty rooms.
The evidence at the public hearings revealed that Exxon would use the premises for the sole purpose of selling gasoline and additives, such as oil and windshield wiper fluid. No repairs of any nature would be made on the premises, nor would oil or grease changes be done. For this reason no trucks or commercial vehicles would be parked on the premises unless they go there either to purchase gasoline or additives or to deliver inventory.
The only structures to be built would be a small kiosk to provide shelter and bathroom facilities and a canopy to cover the pump islands.
Initially, Exxon sought four variances but during the pendency of the appeal it acquired sufficient contiguous property to
make unnecessary all of the variances, except from the proximity requirement. The Amoco station located directly across the street lies within 500 feet of these premises.
A review of zoning proximity requirements should commence with Harvard Ent., Inc. v. Bd. of Adj. of Tp. of Madison, 56 N.J. 362, 363 (1970) which upheld a 2,000 feet proximity requirement for gasoline stations and said that to "sustain its position, plaintiff had to demonstrate that the problems traditionally associated with gas stations -- fire, traffic, aesthetic considerations -- are no greater than for other commercial uses permitted in the same area." Id. at 369. And of special significance is the concurring opinion of Justice Hall, who supported the decision because the record was incomplete and precluded an in-depth review of the issue, but said he was "convinced that it is time for judicial reconsideration of filling station zoning restrictions, including especially those dealing with a required distance between stations." Id. at 370.
Exxon offered an array of experts. A real estate representative testified of the proposed operation at the station which was to sell only gasoline and additives and not perform such work as oil, grease or antifreeze changes; nor would repairs of any nature be made on the premises. Thus, no automobiles or trucks would be stored on the premises which would make this a "very clean operation."
A fire insurance underwriter testified that not only would there be no significant fire hazard but "there will be no adverse affect on the fire insurance rates of any of the surrounding properties." This conclusion was accepted by the board which stated in its resolution that "no substantial fire risk is presented by the proposed application."
Henry J. Ney, a licensed professional engineer and planner, practicing in the field of traffic engineering and transportation, testified that a gasoline service station would not adversely affect traffic any more than a number of ...