Value Oil Company v. Town of Irvington , 164 N.J. Super. 419 ( 1978 )

164 N.J. Super. 419 (1978) 396 A.2d 1149

VALUE OIL COMPANY, A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT,
v.
TOWN OF IRVINGTON, A MUNICIPAL CORPORATION AND THE ZONING BOARD OF ADJUSTMENT OF THE TOWN OF IRVINGTON, DEFENDANTS-APPELLANTS.

Superior Court of New Jersey, Appellate Division.

Argued October 4, 1978. Decided December 22, 1978.

Before Judges FRITZ, BISCHOFF and MORGAN.

Mr. Howard I. Waxman argued the cause for appellant Zoning Board of Adjustment of the Town of Irvington.

Mr. Richard A. Fazzari argued the cause for respondent (Mr. Arthur W. Burgess, attorney).

PER CURIAM.

In the opinion of the trial judge in these consolidated appeals by the municipality and the zoning board of adjustment from his reversal of the denial by the zoning board of a special exception use (a "conditional use" under the new Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., 40:55D-65(f)), he carefully distinguishes between such a use and a variance. 152 N.J. Super. 354, 363 (Law Div. 1977). We concur in the particular significance of that distinction in a matter such as this where the ordinance in question, in dealing with the special exception use for which application was here made, expressly prescribes a large number — ten — of carefully detailed conditions which must be met before a permit for such use shall issue.

In such circumstances, we are of the opinion that if the applicant is in careful compliance with each of these conditions, denial of the permit would be an arbitrary action in the absence of evidence of substantial detriment to the public good or substantial impairment of the intent and purpose of the zone plan and zoning ordinance. Accordingly, we believe that in the factual context of this case the right result was reached, and substantially for the reasons set forth in the opinion of Judge Marzulli.

Affirmed.