For the prosecutor, Doughty & Dwyer (Spaulding Frazer, of counsel).
For the defendants, Thomas L. Zimmerman, Jr.
Before Brogan, Chief Justice, and Justices Case and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The writ of certiorari in this cause brings up for review a judgment, "with all things touching and concerning the same," in the Recorder's Court of the borough of Glen Rock which resulted in the conviction and sentence of the prosecutor (a penalty of $50 was imposed) for having violated the zoning ordinance of the borough.
At the outset, let it be observed that, as in Dorsey Motors, Inc., v. Davis, 13 N.J. Mis. R. 620 (at p. 622); 180 A. 396, the writ here does not, in express terms, bring up the ordinance. Counsel for defendants, however, takes the position (second sentence of the first paragraph of his brief) that the writ "* * * of necessity brings up the validity of the zoning ordinance." Be that as it may, the ordinance is, in fact, before us. Its applicable provisions are fully considered and argued by counsel for the respective parties. We shall treat these arguments accordingly.
Prosecutor was charged with having violated sections II, III and IV, especially subdivision 26 of section IV, of the ordinance. These sections are as follows:
"Section II. Use Regulations Controlling Residential Zones: * * * A fuel oil tank of not more than 2,000 gallons capacity, is permitted if placed not less than eighteen (18") inches underground outside of every building wall provided a permit is secured from the Building Inspector in the regular manner.
"Section III. Use Regulations Controlling Business Zones: * * * Fuel oil tanks for heating or industrial purposes if not more than 5,000 gallons capacity each, may be
installed, not less than two (2') feet underground in any business or industrial zone by obtaining a permit from the Building Inspector.
"Section IV. Use Regulations Controlling Industrial Zones: In an industrial zone, no building or premises shall be used, and no building shall be erected or altered which is arranged, intended or designed to be used for ...