Conford, Kilkenny and Lewis. The opinion of the court was delivered by Kilkenny, J.A.D. Conford, S.j.a.d. (dissenting).
[85 NJSuper Page 556] Is a single coin-operated milk vending machine in the basement of a 400-family, high-rise modern apartment house, for the use of the tenants therein, a
violation of the city zoning ordinance which limits the use of property in this residential district to multiple dwellings and hotels? That is the legal question before us in this appeal.
Both the Municipal Court of Newark and the Essex County Court, on appeal, found defendants guilty of violating the ordinance by reason of their placing such a machine in each of five multiple dwellings, housing a total of 2,038 tenants in this large apartment house complex known as "Ivy Hill." They were each fined a total of $500, or $100 for each milk vending machine so installed without having obtained a variance or certificate of occupancy. Defendant Daly, acting as agent of the owner of the apartment houses, permitted installation of the machines by the codefendant. Each machine had the required board of health license.
Defendants appeal from the County Court judgment of conviction. They contend that the maintenance of a coin-operated milk vending machine at the locations involved in this case is an accessory use under a proper application of zoning law and, accordingly, not a violation of the zoning ordinance.
The precise question herein has not been previously answered in any reported decision in our State or, so far as we know, in any unpublished opinion of our appellate courts. The issue was presented to the Law Division several years ago in the form of a proceeding in lieu of prerogative writs to review a determination of the Board of Adjustment of Newark, denying an application by the owner of these apartment houses for a variance to permit the placing of such machines in these multiple dwellings. The action of the board of adjustment was affirmed by the Law Division and no appeal was taken from that judgment. In an unpublished letter opinion, dated January 23, 1957, Judge Colie then ruled that "the placing of these vending machines in the basement of the premises in question constitutes a business operation" prohibited under the ordinance. The judge relied upon a statement in Gilbert v. Town of Irvington , 20 N.J. 432, 438 (1956), in which the Supreme Court, in declaring invalid a local ordinance which required payment of an annual license
fee of $100 for each milk vending machine in the municipality, held that the fee was excessive and discriminatory, noting that the operators of such machines "are in direct competition with other vendors of milk."
The Court of Appeals of New York was faced with the question before us in Dellwood Dairy Co. v. City of New Rochelle , 7 N.Y. 2 d 374, 197 N.Y.S. 2 d 719, 165 N.E. 2 d 566 (1960), and decided that a milk vending machine was a proper accessory use of an apartment house located in a residential zone. In doing so, it reversed an earlier decision of the Appellate Division to the contrary. 7 A.D. 2 d 1026, 184 N.Y.S. 2 d 656 (1959). The reasoning of the New York Court of Appeals is summed up in the following excerpt from its opinion:
"[T]he use of a milk vending machine is but a different method of doing a traditional service for a householder. It is a common experience that new times bring not only new problems but new ways and means of dealing with old ones. * * * The presence of a milk vending machine * * * in the basement of an apartment building which is not accessible to the general public, can have little, if any, adverse application to the character of the residential neighborhood. It is not commercialism such as ordinarily disturbs the quiet and peaceful enjoyment of the home but, rather, the convenient substitute for the route man. It is a device designed to perform 'a use customarily incidental and subordinate' to the normal enjoyment of an apartment house." (197 N.Y.S. 2 d , at p. 720, 165 N.E. 2 d , at p. 567).
We are persuaded that this rationale represents a reasonable common-sense approach to the problem.
Another earlier New York case, also upholding the right to have a milk vending machine in an apartment house, is Tarr v. City of New York , 12 Misc. 2 d 796, 177 N.Y.S. 2 d 466 (Sup. Ct. 1957). See, too, People v. Page , 36 Misc. 2 d 840, 234 N.Y.S. 2 d 518 (N.Y. City Crim. Ct. 1962), which relied upon Dellwood in extending the doctrine to machines for the vending of soda and bakery products.
In finding defendants guilty, the County Court relied principally upon our decision in Zahn v. Newark ...