Summary
In Reheis v. Newark, 117 N.J.L. 593, in a somewhat similar situation, the board granted a permit and was sustained by the city commission, and again by this court, the writer sitting alone on certiorari.
Summary of this case from Cook v. Board of Adjustment, TrentonOpinion
Argued February 27, 1937 —
Decided March 6, 1937.
1. The granting by the governing body of a municipality of a permit to erect and operate a gasoline station on a main thoroughfare, which is entirely a business street and lined with stores and business properties on both sides thereof, is not an abuse of the discretion lodged in the authorities, even when there are other gasoline stations in the neighborhood, but not an excessive number.
2. The fact that a proposed gasoline station is within eight hundred or one thousand feet from a school building considered under the circumstances not to increase the hazard to school children going to and from the school.
On rule to show cause why certiorari should not issue to bring up the action of the Newark city government in granting a gasoline permit.
Before Justice PARKER, at chambers.
For the prosecutor, Griffinger Griffinger (by Simon J. Griffinger).
For the defendants, Frank A. Boettner (by Walter P. Reilly and Samuel Roessler).
The prosecutor attacks the granting by the city government of a permit to erect and operate a gasoline station on the southwest corner of Broadway and Elliot street in the Woodside district. There was a rule to show cause in this matter and depositions have been taken and exhibits submitted. The permit was denied in the first instance by the building inspector, as it had to be because the district was zoned so as to exclude gasoline stations. The board of adjustment, on appeal, at first affirmed the denial by the building inspector, but later on concluded to grant a permit; and this action was sustained later by the city commission. A number of objections are made to the granting of the permit on this rule, in particular that the location is some eight hundred or one thousand feet from a school on Summer avenue, and that there are other public and semi-public buildings within a block or two, the proximity of which makes against the existence of a gasoline station at this place.
I have taken time to consider the matter and look with care into the facts, particularly as regards the situation of matters on the ground. Broadway at this point is essentially almost entirely a business street. It is the main highway between Newark and Belleville. It is lined with stores and business properties on both sides. There are, as claimed, several gasoline stations in the general neighborhood, but not in any excessive quantity considering the volume of traffic which is constantly passing. The general character of the residential properties on the side streets is not such as to indicate that a gasoline station on the corner of the main thoroughfare will be injurious. As to the danger to school children, it seems to be quite negligible.
In the case of Essex Investment Co. v. Newark, 14 N.J. Mis. R. 181, involving the refusal of the city authorities to grant an additional gasoline permit on Bergen street, the action of the municipality was sustained on the ground that the existing facilities were ample and that additions would depreciate property values. In that case the congestion of gasoline stations was considerably greater than in the present case. In the case now before me the city commission has taken the contrary view after a hearing very similar to that which was held in the Essex Investment Company case. I am unable on the evidence before me to say that they erred in their determination. In fact, I think that they did not.
The rule to show cause is discharged, with costs.