Conford, Freund and Labrecque. The opinion of the court was delivered by Freund, J.A.D.
This is an appeal by the defendant dairy companies (Farmland-Fair Lawn Dairies, Inc., Fair Lawn Dairies, Inc. and Farmland Dairies, Inc.) from a judgment of the Bergen County Court convicting them of using ammonia in the manufacture of ice in violation of the zoning ordinance of the Borough of Fair Lawn, N.J. The complaint was heard on a trial de novo following conviction in the borough's municipal court. Defendants were acquitted in the County Court of the offense of storing materials and equipment on property of a neighbor in a residential zone in violation of the same ordinance.
Defendants operate a dairy on River Road in Fair Lawn, N.J., which processes, bottles, distributes and sells milk. All their buildings are located in an area zoned R-1-3, a residential zone, but qualify as a non-conforming use since the business was conducted and buildings located on the premises for a time prior to the enactment of the ordinance. On June 8, 1954 Fair Lawn Dairies, Inc., by resolution of the Borough Council, was granted a variance to replace and alter several buildings. One of them, designated Building C, was to be "a refrigeration building for refrigeration and storage of ice." But the resolution provided that "SO2 and
ammonia refrigeration" were not to be used therein. The resolution recited that the applicant had proposed and requested all the designated conditions and restrictions in the variance (there were several others).
After the former building had been demolished, the dairy erected Building C in accordance with the variance. Early in 1958 defendants commenced to manufacture ice in Building C by the use of ammonia. Defendants' witness, Raymond Ebner, a refrigeration engineer, testified that he designed the ammonia equipment for Building C and that it was capable of producing 50 tons of block ice every 24 hours. This operation continued until October 15, 1959. On January 23, 1960 the Borough Building Inspector, by complaint, charged that defendants, Fair Lawn Dairies, Inc. and Farmland-Fair Lawn Dairies, Inc., "by the use of ammonia in the refrigeration process of manufacturing ice," had "caused an extension of a non-conforming use" in violation of the zoning ordinance. The defendants' expert further testified that the most economical and practical system available for furnishing the dairy's ice requirements was by use of an ammonia operated plant.
Defendants assign as their first ground for reversal that the zoning ordinance can provide no basis for conviction since it does not expressly and explicitly prohibit or restrict the maintenance of an ammonia operated plant in an R-1-3 residential district. The ordinance lists the following permitted uses in an R-1-3 district:
"R-1, R-1-1, R-1-2 and R-1-3 DISTRICTS SINGLE FAMILY RESIDENTIAL
2. Church or similar place of worship, parish house, convent.
3. Publicly operated facilities for education and recreation.
4. Customary agricultural operations, provided, however, that no odor or dust productive substance or use shall be permitted within one ...