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State v. Gargiulo

Decided: October 3, 1968.

STATE OF NEW JERSEY, TOWNSHIP OF CHATHAM, PLAINTIFF-RESPONDENT,
v.
BERNARD WILLIAM GARGIULO, DEFENDANT-APPELLANT



Gaulkin, Collester and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.

Labrecque

Defendant appeals from a judgment of the Morris County Court which, on appeal from the Municipal Court of Chatham Township, found him guilty of violating the township zoning ordinance and imposed a fine of $200.

Appellant has been the operator, since 1954, of a gasoline service station located at the intersection of Green Village Road and Shunpike Road in Chatham Township. Under the zoning ordinance in effect in 1954 the area was zoned for business, including gasoline filling stations, and there were no restrictions on the use of signs.

In 1961 a comprehensive amendment to the zoning ordinance was enacted whereby the area in which defendant's station is located was rezoned "B Neighborhood Business Zone." By the omission to mention them as a permissible use, service stations were excluded. A further amendment enacted in 1965 specifically excluded them. The 1961 and 1965 amendments also contained provisions regulating the number, size, shape, location and lighting of signs and prohibiting the outdoor "storage" of material and equipment.

In 1966, after the filing of a complaint against him by the township zoning officer, defendant made application to the zoning board of adjustment for a variance to permit, inter alia, (1) an increase in the number of signs permitted on the gas station and (2) the storage and display of tires on the premises. Following favorable action by the board, the township governing body on January 5, 1967 adopted a resolution granting a variance for two promotional signs not to exceed 30 inches in the largest dimension but providing

that no other promotional sign should be permitted. The resolution also allowed the location and maintenance of a cabinet for the storage and display of tires. There was no appeal from the action of the governing body but thereafter defendant put up the "Flying Aces" contest sign hereafter described.

The magistrate and the County Court judge found that defendant had violated the ordinance by (1) maintaining the sign promoting the "Flying Aces" contest, and (2) displaying a tire at each end of the two pump islands on the premises.

The tire display on which the complaint was based consisted of a single tire, set in a stand at each end of the two pump islands. They were put out every morning and removed every night. Defendant testified they were put there to let the public know that he sold tires and to prevent drivers from running into his pumps.

In his letter opinion the county judge noted that both the 1961 and 1965 ordinances contained provisions prohibiting the outdoor storage or display of merchandise. While we have not been favored with a copy of the 1961 ordinance, the ordinance in effect at the time of the offense was the 1965 one and we find nothing in it which prohibits the display of merchandise. While the resolution of the township committee which granted defendant's application for a variance provided, in part, that "no other tire storage or display for which a variance was requested shall be permitted," this proviso did not rise to the height of law and could not serve to prohibit an action which was not prohibited by the ordinance itself. We reject the suggestion that the provision of the ordinance which requires that material and equipment (with certain exceptions not here relevant) be stored in completely enclosed structures prohibits the display of the tires in the manner indicated. The word storage connotes permanency and not a transient situation. Cf. N.Y. Central R.R. Co. v. Borough of Ridgefield, 84 N.J. Super. 85 (App. Div. 1964). Here the tires were not

being stored but were being displayed while serving as bumpers or barriers.

It follows that the conviction for such violation must be set aside. We express no opinion as to whether a prohibition of such display ...


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