Maplewood Tp. v. Tannenhaus

• Decision Date: 21 November 1960
• Docket Number: No. A--685,A--685
• Citation: Maplewood Tp. v. Tannenhaus, 165 A.2d 300, 64 N.J.Super. 80 (N.J. Super. App. Div. 1960)
• Parties: TOWNSHIP OF MAPLEWOOD, Complainant-Respondent, v. Ivor TANNENHAUS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 80

64 N.J.Super. 80

165 A.2d 300

TOWNSHIP OF MAPLEWOOD, Complainant-Respondent, v. Ivor TANNENHAUS, Defendant-Appellant.

No. A--685.

Superior Court of New Jersey Appellate Division.

Argued Oct. 31, 1960.

Decided Nov. 21, 1960.

Nathaniel W. Franzblau, Newark, for appellant (Franzblau & Franzblau, Newark, attorneys)

Harry V. Osborne, Jr., Newark, for respondent (Osborne, Cornish & Scheck, Newark, attorneys).

Before Judges CONFORD, FREUND and KILKENNY.

The opinion of the court was delivered by

KILKENNY, J.A.D.

The defendant was convicted in the Maplewood Municipal Court on February 8, 1960 and fined $50, after trial of a complaint, which charged that 'On or about December 2, 1959, in the Township of Maplewood County of Essex and State of New Jersey, (he) did violate Section 9, Paragraph 1 of the Zoning Ordinance of the Township of Maplewood, passed March 20th, 1934 in that on or about December 2nd 1959 Tanen Plumbing Supply Company, Inc., did use the premises at 1505 Springfield Avenue, Maplewood, N.J. for the open storage of material in connection with their plumbing supply business.'

On appeal to the Essex County Court, and after a trial De novo, the defendant was again found guilty of the violation and fined $50, and costs of $8.50 were imposed. At the hearing in the Essex County Court on March 14, 1960 an amendment of the complaint was allowed changing the Locus in quo to read:

'South East corner of Springfield Avenue and Jacoby St., being lots No. 391, 392, 393 and 394 on plate No. 45 of the tax map of Maplewood, N.J.--instead of 1905 Springfield Avenue, Maplewood, N.J.'

This amendment was obviously necessary, since defendant's use of the building at 1505 Springfield Avenue was concededly not in violation of the ordinance. The complaint was really grounded upon defendant's use of the four vacant lots immediately adjacent to this building, and used in connection with the business conducted in that building. The defendant makes no objection to the propriety of this amendment.

This appeal is from the judgment of conviction entered in the Essex County Court on April 13, 1960.

We observe at the outset that the complaint in the municipal court is inartistically drawn. It charges that the individual defendant did violate the zoning ordinance 'in that * * * Tanen Supply Company, Inc. did use the premises * * * for the open storage of material in connection with Their plumbing supply business.' (Emphasis supplied.) Thus, the individual is charged with the corporation's alleged violation and his connection, if any, with the corporation is not stated. However, the defendant raised no objection to this discrepancy at either trial below and waived the point on this appeal. Therefore, we shall not consider it.

Section 9, paragraph 1 of the Maplewood zoning ordinance, admittedly applicable to the subject building and adjacent four lots, provides Inter alia that:

'1. In the business districts no building, structure or premises shall be used * * * unless designed, arranged or intended to be used exclusively for one or more of the following purposes:

'b. For a store or shop for the conduct of retail or wholesale business * * *

'c. A place of business of a dressmaker, milliner, photographer, tailor, carpenter, cleaner, dyer, electrician, laundryman, painter, paperhanger, plumber, printer, roofer, tinsmith, undertaker, upholsterer, barber, beauty shop, or any other retail shop.

'i. No building shall have more than 50 percent of its floor area devoted to the storage of goods, and any storage shall only be in connection with a business located in the same building * * *.'

The facts are not in dispute and may be summarized as follows.

Since August 1954 the defendant, or Tanen Plumbing Supply Company, Inc., has operated a wholesale and retail plumbing and heating supply business at 1505--1515 Springfield Avenue, Maplewood, N.J. Title to this entire property has been in Drew Motors, Inc. by a single deed, and occupancy has been in the defendant corporation, as a tenant, under a single lease. On 1905 Springfield Avenue, known as lot 411, there has been a one-story building used as a store and office, and for the temporary storage of supplies sold in the regular course of business. This building is approximately 50 feet in width, covers the full width of the lot, and is 120 feet long. Immediately adjoining the westerly wall of this building are four vacant lots, numbered 391, 392, 393 and 394 on plate No. 45 of the tax map of Maplewood, comprising a single, open tract of land. These vacant lots are situated at the southeast corner of Springfield Avenue and Jacoby Street, and are completely enclosed by a six-foot cyclone fence on their northerly, southerly and westerly sides, with the westerly wall of the aforesaid building on their easterly side. This fense is attached to the building at two points. There are direct means of ingress to and egress from the building to the vacant lots by three doors in the building. There is also a driveway from Jacoby Street into these lots, which has been used to deposit and pick up supplies, the trucks loading and unloading at a loading platform, which is against the westerly side of the store building.

In September 1959 the Maplewood building inspector, who is expressly charged in section 11 of the municipal zoning ordinance with enforcing its provisions and those of the building code, inspected defendant's property. He was accompanied by the fire chief and by a captain of the Police Department. He noted that storage sheds or bins, measuring about 5 feet in width by 8 feet in height and 50 feet long, had been erected on the vacant lots some short time before without any building permit. (The complaint under review is not concerned with defendant's failure to obtain a building permit.) These shelf-like bins were used for the storage of iron pipe and fittings. Large quantities of 4-inch cast iron pipe and one or two 275-gallon oil storage tanks were openly stored on the vacant lots. These supplies were part of defendant's business inventory, increasing and diminishing from time to time as sales were made.

As a result of this inspection the building inspector, by letter of September 15, 1959, admittedly received by defendant, notified the Tanen Plumbing Supply that, while the use of the building at No. 1505 Springfield Avenue as a store or shop for the conduct of a retail and wholesale supply business was permitted, the use of the exterior vacant lots violated the terms of the zoning ordinance and must be discontinued, and directed that the storage bins be removed.

On November 2, 1959 defendant conferred with the building inspector, explained the delays in trying to comply, and indicated that he needed an additional 30 days to try to bring his operation into the demanded compliance. When further examination of defendant's property on December 2, 1959 revealed that the conditions were the same, the building inspector filed his complaint the next day in the Maplewood Municipal Court, as first noted above.

There is no contention that the defendant's wholesale and retail business, as such, violates the ordinance, or that the defendant used more than 50% Of the floor area of the building, or of the adjacent vacant land, for the temporary storage of goods sold in the business.

Hence, the issue narrows to whether defendant's open storage, pending sale, of business supplies on the vacant, enclosed land adjoining his business building, is a violation of the ordinance.

A municipality has a right to control the use of vacant land by a zoning ordinance. Garrou v. Teaneck Tryon Co., 11 N.J. 294, 94 A.2d 332, 35 A.L.R.2d 1125 (1953). The creation of separate zones, with varying limitations upon permissible uses in each zone, is valid, if reasonable. No challenge is made in the instant appeal as to the reasonableness of the classification. Rather, the argument is centered upon the meaning of the zoning provision and its applicability to the facts of this case.

Thus, the defendant contends that the word 'premises' in section 9, paragraph 1, means a building And the land surrounding it, if used together as an integral commercial unit. He argues therefrom that the ordinance, allowing 'premises' to be used as a store or shop for a wholesale and retail business, includes both the building and the surrounding land. In Black's Law Dictionary (4th ed. 1951), 'premises' is defined as:

'Lands and tenements; an estate; land and buildings thereon * * *. The area of land surrounding a house, and actually or by legal construction forming one enclosure with it. Ratzell v. State, Okl.Cr.App. 288 (228) P. 166, 168.'

The word 'premises' is of broader comprehension than the word 'building.' It may mean land alone or land with buildings or appurtenances. In City of Newark v. Lippmen, 13 N.J.Misc. 248, 177 A. 556 (Crim.Ct.1935), the court stated:

'The word 'premises' has been defined as 'the land with its appurtenances."

In Ford Motor Co. v. New Jersey Dept. of Labor and Industry, 5 N.J. 494, 76 A.2d 256, 260 (1950), the court defined 'premises' as:

'the property conveyed in a deed; hence, in general, a piece of land or real estate; sometimes * * * a building or buildings on land.'

This definition is cited in Reinauer Realty Corp. v. Nucera, 59 N.J.Super. 189, 199, 157 A.2d 524, 528 (App.Div.1960), where the words of the zoning ordinance requiring interpretation were:

'No building or premises shall be used * * * for any of the following * * * uses:

'28. Petroleum, storage in excess of 200,000 gallons.'

It was held that 'a construction which will render any part of a statute or ordinance inoperative, superfluous or meaningless is to be avoided.' Citing State v. Sperry...