Opinion
Argued May 2, 1939 —
Decided May 12, 1939.
There is no power in a municipality to limit or regulate the use to which property may be put, unless that limitation be designed to promote public health, safety and general welfare; and where, as here, it does not appear that the granting of a permit for the erection of a gasoline service station will be in anywise detrimental to the public health, safety or general welfare, such permit must be granted.
On alternative writ of mandamus.
Before BROGAN, CHIEF JUSTICE, and Justices DONGES and PORTER.
For the relator, Douglas C. Aitken.
For the respondents, Samuel Iredell and David L. Horuvitz.
Relator applied for a permit to erect a gasoline service station on South Pearl street, in the city of Bridgeton. On May 3d 1938, a hearing was held by the city council and the approval of the permit was denied. This was the third such application, all of which were denied.
On application, this alternative writ of mandamus was allowed.
There is no zoning ordinance. The pertinent provision of the city ordinance provides: "The granting of the application for permit will not be approved by the City Council wherever it appears that the granting of the same is or may be detrimental to public health or safety or detrimental to the welfare, growth or the constructive development of the City of Bridgeton."
It is well established that there is no power in a municipality to limit or regulate the use to which property may be put unless that limitation be designed to promote public health, safety and general welfare. State v. Nutley, 99 N.J.L. 389 ; Durkin Lumber Co. v. Fitzsimmons, 106 Id. 183; Gabrielson v. Glen Ridge, 13 N.J. Mis. R. 142; 179 Duncan Avenue Corp. v. Jersey City, 122 N.J.L. 292 .
A careful review of the testimony in this case persuades us that the proposed use of the premises by relator will not endanger public health, safety or the general welfare, or development of the municipality. It is proposed to erect a drive-in station in a railroad yard. There is no sidewalk on that side of the street. Within a short distance on the opposite side of the street are two gasoline service stations. Nothing appears to justify a finding that any of the conditions assigned by the city council will result from the building of the proposed structure.
The relator is lessee of the Pennsylvania-Reading Seashore Lines. It is argued by respondent that there does not appear from the lease in evidence such interest in the lands as will warrant mandamus. We are of opinion that the relator has such an interest as entitles it to have its rights enforced by mandamus.
A peremptory writ of mandamus will be allowed.