Borough of North Plainfield v. Perone

• Decision Date: 28 January 1959
• Docket Number: No. A--298,A--298
• Parties: BOROUGH OF NORTH PLAINFIELD, Plaintiff-Respondent, v. Dominic PERONE, trading as Richard's Auto Body, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 1

54 N.J.Super. 1

148 A.2d 50

BOROUGH OF NORTH PLAINFIELD, Plaintiff-Respondent, v. Dominic PERONE, trading as Richard's Auto Body, Defendant-Appellant.

No. A--298.

Superior Court of New Jersey

Appellate Division.

Argued Dec. 1, 1958.

Decided Jan. 28, 1959.

William Noel Ogden, Somerville, argued the cause for defendant-appellant.

Charles A. Reid, Jr., Plainfield, argued the cause for plaintiff-respondent (Reid & Reid, Plainfield, attorneys; John Andrew Reid and Harman R. Clark, Jr., Plainfield, of counsel).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

FREUND, J.A.D.

This is an appeal by defendant Dominic Perone, doing business as 'Richard's Auto Body,' from judgments of the Somerset County Court convicting him of operating motor vehicle service stations contrary to the applicable zoning ordinance of the Borough of North Plainfield. The Somerset County Court heard the case on a trial De novo, following convictions in the borough's municipal court. The judgments concern two adjoining premises, one called the Newton Street property and the other called the Watchung Avenue property.

The North Plainfield building inspector, Ernest S. Bird, signed two complaints against the defendant on July 3, 1957, each charging the unlawful operation of motor vehicle service stations on the two premises in question on July 1, 1957. In affirming the two convictions, the county judge imposed a fine of $100 on each complaint, both fines, however, to be suspended provided the defendant terminate each violation within 90 days. The judgment was stayed pending the appeal to this court.

The situation is best stated by first describing the premises, then outlining the legal problems in regard to the zoning ordinance and the action of the board of adjustment, and finally by describing defendant's use of the two premises.

Newton Street and Watchung Avenue are parallel to each other, running to the north off the side of State Highway 22 in North Plainfield; Newton Street is the easternmost of the two streets. The Newton Street property is a rectangular lot, the westerly line of which adjoins the defendant's Watchung Avenue property. The southerly line of both properties forms a continuous boundary line with property referred to as the Shell Station property. This southerly line, however, is not parallel with Route 22 but is approximately 108 feet distant at Newton Street and approximately 48 feet distant at Watchung Avenue. The Shell Station property is the only property separating defendant's premises from the highway, and it runs the entire distance from Watchung Avenue to Newton Street along Route 22. On the other side of Newton Street at the northeast corner of the Route 22 intersection, there is another service station; behind it to the north are single-family dwellings facing the defendant's Newton Street property.

In the middle of the Newton Street lot there is a small structure 20 feet by 40 feet. It was erected by Lester W. Kirchner prior to 1946, when he was the owner of the Newton Street lot and a lessee of the Shell Station. At the front, or easterly end of the lot, there is a larger structure, which was the subject of an application to the board of adjustment by Kirchner in 1946. Permission to erect the larger structure was granted by the board in 1946, subject to certain conditions, which defendant has been convicted of violating. Upon the Watchung Avenue premises are a dwelling house and a garage, orginally designed as a garage for the dwelling. Most of the rear area of the premises is covered by black-top.

In 1923 the Borough of North Plainfield adopted its original zoning ordinance, and the premises in question were placed in the 'B' residence zone. In 1935, by amendment, the premises were changed to the 'Business Zone,' and became subject to the regulations of the business zone provided in the 1923 ordinance.

The 1923 ordinance prohibited the use of any building or premises for a 'garage or group of garages for more than 5 motor vehicles' or for a 'motor vehicle service station,' unless special permission were granted under section XI by the board of adjustment. The ordinance of 1923, as amended, was in effect in 1946 and controlled the action of the board of adjustment in 1946 in relation to the Newton Street property. In 1950 by amendment to the zoning ordinance as revised in 1948, a special provision was made in regard to motor vehicle service stations. It is this provision which is applicable to the Watchung Avenue property.

In 1946 Kirchner, the then owner of the Newton Street property, made an application to the board of adjustment 'to erect a building for the servicing of automobiles' at 345 Newton Street as an addition to the smaller structure then existing on the property. On October 28, 1946 the board held a public hearing on the application, at which objecting property owners presented a petition in opposition to Kirchner's application. Ironically, one of the objectors was Peter Perone, the father of the defendant Dominic Perone. The board decided to grant the exception, subject to the following conditions: (1) that no automobile entrance to the building be on Newton Street; (2) that repairing of automobiles be done inside the building; (3) that no automobiles be stored outside the building. Thus, the building was erected with its access doors facing the Shell Station on Route 22. Kirchner proceeded to use the building in conjunction with his operation at the Shell Station.

In 1949 Kirchner gave up his lease of the Shell Station, and in the same year he sold the Newton Street property to the C. C. Downs Co. This company operated an awning business at the Newton Street property until 1951. The property was then sold to defendant's uncle, who, in turn, conveyed it to defendant's father. The latter, on October 8, 1951 (the date of the deed to him), applied to the building inspector for permission to 'change a door from one place of building to another.' However, the application did not designate which door was to be closed and where a new one was to be opened.

The testimony discloses that defendant, first as tenant and subsequently as owner, operated an 'auto body shop' on the Newton Street property in the name of 'Richard's Auto Body.' (The elder Perone was the owner-lessor of the Newton Street property at the time the complaints in this action were filed in the local municipal court. Pending the appeal to the County Court, he sold the property to his son, the defendant.) Defendant picks up autos involved in accidents on the highways and hauls them to his service station. At the Newton Street property, inside and outside of the building, he uses power tools and acetylene torches in either dismantling or repairing the automobiles. Defendant paints automobiles using lacquer paints, which he admitted are highly inflammable. Additionally, he stores automobiles on the Newton Street property outside of the buildings.

The small garage building at the rear of the dwelling on the Watchung Avenue property is used by the defendant for the repair of automobiles and the testing of radiators--all in connection with the business conducted on the Newton Street property. Automobiles are also stored on the Watchung Avenue property.

To summarize briefly, Kirchner at one time used the Newton Street property, pursuant to an exception he obtained therefor in 1946, as an adjunct to the Shell Station which he leased. The defendant now, however, uses the Watchung Street property, without benefit of an exception obtained by anyone, as an adjunct to his auto body shop on the Newton Street lot, a lot which it must be remembered was granted an exception subject to three conditions. As noted, the defendant was convicted for violations of the local zoning ordinances as to both premises.

I.

Defendant assigns four main reasons for reversing the convictions, the first of which is that he cannot be charged with violating the three conditions attached to the granting of the exception by the board in 1946 for the reason that the board, in granting Kirchner's application, had no power to impose such conditions. It is difficult to understand precisely what basis the defendant is assigning for the alleged lack of power in the zoning board to fix the conditions. The argument may be that only those specific conditions and stipulations mentioned in the ordinance itself may be availed of by the board. If so, the contention is palpably without merit. The 1923 ordinance, particularly the first sentence of section XI, makes clear that the board was expressly authorized to attach 'appropriate conditions and safeguards' to the granting of such an application.

We suspect that the real thrust of the defendant's argument is not that the board of adjustment lacked the power to impose conditions because of any restraint on its authority found in the local zoning ordinance, but rather that the governing body of North Plainfield could not, consistently with N.J.S.A. 40:55--39(b), delegate to the board the responsibility of fixing such conditions. This is undoubtedly the reason for the defendant's reference to the statement in Moriarty v. Pozner, 21 N.J. 199, 210, 121 A.2d 527, 533 (1956), that '* * * the conditions for such special use must be found in the local legislative act and may not be varied.' Similar language is employed in 101 C.J.S. Zoning § 271 p. 1036.

We do not, however, read the Moriarty case as requiring all the conditions attached to the granting of a special exception to be set forth explicitly in the local ordinance. Justice Heher in speaking in that case of an exception as a legislative function meant only that a board of adjustment is not free to grant an exception in every case in which one is sought without some provision in the ordinance from which it might reasonably be indicated that the local legislatve body contemplated that an exception would be permissible...