Conford, Freund and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.
[64 NJSuper Page 81] 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 1505 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 1505 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 ...