First Church of Christ v. Bd. of Adjust., Newark

26 A.2d 246, 128 N.J.L. 376

Opinions

The opinion of the court was delivered by

Campbell, Chancellor.

The judgments under review are affirmed. This conclusion is based upon the factual findings of the Supreme Court as well as upon its judgment that the zoning ordinance prohibiting public garages, which by definition include gasoline stations, throughout the entire city, is an unlawful exercise of its power of legislation under New Jersey Constitution, article IV, section 6, paragraph 5; Pamph. L. 1928, ch. 274, p. 698; N. J. S. A. 40:55-30.

There are certain structures and uses that have peculiar and unusual characteristics, such as those here under consideration, that put them in a class apart from other structures and uses and, while public necessities, may have a particular bearing upon the public safety and general welfare if not located with due consideration of conditions, surroundings, necessity and convenience, necessitating and requiring a proper method of regulation but not warranting an absolute prohibition.

It is argued by appellant that the Newark ordinance is within the doctrine of Schnell v. Ocean (Supreme Court), 120 N. J. L. 194, but that is not so.

The ordinance in Schnell v. Ocean, supra, did not provide for any zone in which these structures might be erected or used and did not purport to bo an exercise of the zoning power but of the general police power to regulate -gasoline stations and kindred structures and uses because of their peculiar characteristics and it laid down a standard for the guidance of the board of adjustment, which was whether, in its judgment the structure and use would be detrimental to the health, safety, and general welfare and was reasonably necessary for the convenience of the community. It was held that this was property delegated to the adjustment board under subdivision 4 of section 9 of the Zoning Act, Pamph. L. 1928, p. 698; R. S. 1937, 40:55-39, et seq. This finding is approved and adopted by us. There was no such standard or criterion in the Newark ordinance but, on the contrary, a fiat prohibition.

The judgments under review are affirmed, with costs.