On appeal from the Superior Court, Law Division, Essex County.
Pressler, Brody and Cohen. The opinion of the court was delivered by Pressler, P.J.A.D.
[199 NJSuper Page 472] In this action in lieu of prerogative writs, plaintiff Exxon Company unsuccessfully challenged the facial constitutionality and the constitutionality as applied to its property of a zoning ordinance provision of defendant Township of Livingston which prohibits gasoline station use within 500 feet of another gasoline station or of specific public uses, such as schools and churches. We reverse.
The ordinance provision permits gasoline stations and public garages as conditional uses in the B-1 business district, of which there are several in the Township. The effect of the proximity requirement, however, is to bar new gasoline station sites because of the number and location of pre-existing stations in the Township vis-a-vis other such uses and public buildings. The inference is inescapable that the proximity device not only operates as a prohibitory mechanism but was intended for that purpose.
Of the 26 service stations and public garages now operating in Livingston, Exxon owns or is the franchisor of eight. One of these is located at the intersection of Sherbrooke Parkway and Mt. Pleasant Avenue (the Sherbrooke station). The intersection at which the station is located is uncontrolled, the facility itself is an old one, and one of the intersecting streets is residential in character. That station does not meet Exxon's present site location criteria and is otherwise in need of physical upgrading. It is also in violation of the ordinance since it is located within 500 feet of two churches, a theater and another service station.
Exxon owns a vacant parcel on Mt. Pleasant Avenue at its intersection with Livingston Avenue. This intersection, controlled by a traffic light, is about a block away from the Sherbrooke station. It meets Exxon's site selection criteria because of the controlled nature of the intersection; the commercial character of both intersecting streets and the surrounding uses; the nature and volume of the vehicular traffic passing on the intersecting streets, one of which is a county highway and the other of which is a state highway; and the size of the parcel, which lends itself to well-designed traffic circulation patterns. Exxon plans to close the Sherbrooke station and to relocate that facility to the subject premises on which it intends to build a modern, safer, more aesthetically pleasing facility more compatible with and better buffered from its surrounding uses. The new site, however, runs afoul of the ordinance because of its proximity to several public buildings and another service station. The other service station is an
Exxon franchise located immediately adjacent to the proposed relocation site. That station is apparently an old facility whose major business is mechanical and body work rather than the sale of gasoline.
Prior to the institution of this suit, plaintiff applied to the Livingston Planning Board for conditional use approval for the proposed site, also requesting variance relief from the proximity requirement and some of the so-called bulk requirements applicable to service stations. The application was denied, and plaintiff commenced this action seeking both relief from the adverse determination of the Planning Board and a declaration of the unconstitutionality of the proximity requirements of the ordinance. The challenge to the Planning Board action was dismissed prior to trial, the judge having concluded that the Planning Board lacked jurisdiction to grant the requested variance relief. The order dismissing that count of the complaint expressly provided that it was entered without prejudice to plaintiff's right to apply to the Board of Adjustment for variance relief. Regrettably, plaintiff did not do so, and trial of the constitutional challenge alone ensued.
The trial proofs were circumscribed by a stipulation of the parties pursuant to which Livingston represented that its proximity ordinance was not motivated by the traditional view that gasoline stations generate special community problems in terms of vehicular and pedestrial traffic dangers; the risk of combustion, fumes and environmental pollution; the creation of noise; and the depreciation of neighborhood property values. Rather, it undertook to defend the proximity provision solely on the ground that it is reasonably related to the planning desideratum of encouraging the appropriate use of land. As explained by the Township's land-use expert, the sound planning of Livingston's business districts was intended to be promoted by preventing a concentration of gasoline stations in order to ensure the availability of vacant sites in the B-1 district for diverse commercial development and, particularly, for retail uses. It was his testimony that
* * * we did not want to have a proliferation of gas stations monopolizing the core business town center of Livingston. I think I used the term gasoline alley to illustrate the point. * * * We would prefer to have retail sales in the whole zone.
Because of this stipulation, plaintiff expressly refrained from introducing experts' proofs dealing with the more typical, nuisance-type objections to gasoline station use. See, e.g., Schmidt v. Board of Adjustment, Newark, 9 N.J. 405 (1952). Thus, it did not call its traffic expert, its ...