“[A]n ordinance that may operate reasonably in some circumstances and unreasonably in others is not void in toto, but is enforceable except where in the particular circumstances its operation would be unreasonable and oppressive.”
How later courts described this case
- “[A]n ordinance that may operate reasonably in some circumstances and unreasonably in others is not void in toto, but is enforceable except where in the particular circumstances its operation would be unreasonable and oppressive.”
- upholding 2,000-foot buffer between gasoline stations based upon town’s fire, traffic and aesthetic concerns
Written by the judges who cited it.
The opinion
Hall, J.
(concurring). I agree with the conclusion reached in the Court’s opinion, which I read to say that the plaintiff’s proofs are much too inadequate to permit proper consideration of the validity of the proximity requirement of 2000 feet between filling stations, either on its face as to Madison Township or everywhere, or with respect to this particular property. I would add some further views.
Plaintiff’s course of action requires this result. It first sought combination relief before the Board of Adjustment which could not possibly have been granted by that body without a gross perversion of zoning principles and law. A *370 special exception under N. J. S. A. 40:55-39(b) could not be granted because at least the 2000 foot distance mandated bjr the ordinance stood in the way. So plaintiff also requested a variance from that requirement. Such would amount to a use variance under N. J. S. A. 40:55-39(d), which requires the existence of “special reasons” as well as meeting the negative criteria. The testimony offered could not possibly support a use variance. On this score it amounted to little more than opinion evidence that the property is a good site for a gas station and that such is its highest and best use. The only further evidence was a petroleum industry report designed to show the modern unreasonableness of filling station zoning restrictions, which at best would go to the general unconstitutionality of such regulations, a matter not within the province of a municipal administrative agency.
The single count complaint in the Law Division sought a review of the denial by the Board of Adjustment. The demand for relief related to this particular property and the special exception application, requesting that the action of the Board be set aside and that it be directed to grant the exception and issue a building permit. The only ground for relief alleged was that the 2000 foot requirement “is improper, illegal and constitutes an arbitrary and unreasonable classification of the business of gasoline service stations without similar restraint or regulation on similar businesses.” This claim, as elaborated upon in plaintiff’s brief, amounts to a general contention that any zoning regulation anywhere restricting the distance between filling stations is unreasonable in this day and age and invalid on its face. Plaintiff offered no proofs on the subject beyond introducing the largely irrelevant and completely unsatisfactory record before the Board of Adjustment.
I am convinced that it is time for judicial reconsideration of filling station zoning restrictions, including especially those dealing with a required distance between stations. They stem, as do decisions in this state generally upholding them, largely through repetition, from the early days of the *371 motor vehicle and gasoline retailing. In many jurisdictions a modern, more realistic approach, in the light of experience as to hazards, has been taken and special regulations have been struck down, at least in part. See cases collected in 2 Anderson, American Law of Zoning, secs. 11.23 to 11.35 (1968). But reconsideration should not be undertaken by a court in the absence of a full record of competent, relevant evidence, from appropriate zoning and other material standpoints, thoroughly exploring the matter. Such a record being so patently absent in this case, we should not get into the question at all. We granted certification under the mistaken belief -that the record would permit reconsideration. So affirmance of the judgment (or vacation of the certification as improvidently granted) is called for, without prejudice to plaintiff’s institution of a new suit in lieu of prerogative writ attacking the validity of the ordinance proximity requirement.
Hall, J., concurring in result.
For affirmance — Chief Justice Weintraub and Justices - Jacobs, Erancis, Peoctor, Hall, Schbttino and Hanemajst — 7.
For reversal — None.