This is a trial de novo. Defendant Benjamin Shalit is the owner of two adjoining garden-type apartment buildings on Bloomfield Avenue, Verona, New Jersey, which were constructed at the same time in 1961. Each building contains a built-in incinerator for garbage disposal, supplied by the Sargent Incinerator Company. The complaint in this case is directed solely to the premises referred to as 800 Bloomfield Avenue, which consists of 16 two-room apartments.
Shalit was tried and convicted before the municipal court of the borough upon a complaint which alleges that on May 17, 1965, he
"* * * did permit the escape of gas, smoke and obnoxious odors which were a source of physical distress to others; said gas, smoke, odors emanating from the incinerator chimney owned and maintained by said Benjamin Shalit at 800 Bloomfield Avenue, Verona, New Jersey in violation of the Borough of Verona Board of Health, 'Sanitary Code', Section 6, entitled 'Nuisances', more particularly, paragraph 11, passed February 15, 1965 * * *."
Section 6 is entitled "Nuisances." Prefatorily it provides that:
"The maintaining of anything whatsoever which is a hazard or a danger to human health, and the following specific acts, conditions or states are, each and every one, declared to be and constitute a nuisance."
The pertinent "specific acts" of section 6 upon which the complaint is grounded, read as follows:
"Any chimney, smoke-stack, pipe or flue, or any part thereof, or any connection therewith, that is so defective or out of repair as to allow gas or other noxious fumes to escape into the building and any gas-pipe or other fixture, from which may issue any foul or obnoxious odors or liquids.
The escape of any gas, fumes, smoke, or other odors that may be of a menace to human life, or is by reason of disagreeable or obnoxious odors a source of physical distress to persons in the vicinity."
The Air Pollution Control Act, L. 1954, c. 212, § 1, N.J.S.A. 26:2C-1 et seq., authorized the establishment of an Air Pollution Control Commission within the State Department of Health and invested it with the power to formulate and promulgate a code to regulate, control and prohibit air pollution throughout the State. By virtue of said authority there was adopted the "New Jersey Air Pollution Control Code."
N.J.S.A. 26:2C-22 further provides that:
"* * * Nothing in this act or in any code, rules or regulations promulgated pursuant thereto shall preclude the right of any governing body of a municipality or county or board of health to adopt ordinances or regulations not inconsistent with this act or any code, rules or regulations promulgated pursuant thereto." (Emphasis supplied)
The Code also contains definitions of fuel-burning equipment and of smoke; it provides as well for the grading of the density of smoke according to the Ringelmann Smoke Chart, and specifies the circumstances under which greater amounts of smoke are permissible.
The borough ordinance, however, does not define fuel-burning equipment nor smoke; nor does it indicate the impermissible type of smoke emissions or recognize any allowable exceptions under special circumstances; nor are we advised of any standards of measurement. One portion of section 6 of the ordinance provides ...