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 Plaintifield. 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, originally 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 ...