State v. GargiuloState v. Gargiulo
- Reporters:
- ,
- Before:
- Labrecque J.A.D., Gaulkin, Collester
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
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
It follows that the conviction for such violation must be set aside. We express no opinion as to whether a prohibition of such display upon this property would be valid.
The “Flying Aces” sign was some 2 1/2 by 6 feet in size, made of nonpermanent material (plastic), and lettered in large letters as follows:
“WIN UP TO $2,500 FREE! PLAY FLYING ACES”
It was tied to the station pylon (identification) post and may more appropriately be denominated as a banner or flyer. It is to be distinguished from signs which were on the premises and continued to be used after enactment of the 1961 ordinance and the additional signs authorized by the variance. The banner was not put up until two months after the governing body had declined to grant a variance permitting it. It was intended to advertise the current “give away” program of the Tidewater Oil Company (hereafter Tidewater).1 Such programs are of comparatively recent origin and the manner of their operation has been substantially set forth in United Stations of N.J. v. Kingsley, 99 N.J. Super. 574 (Ch. Div. 1968) and United Stations of N.J., v. Getty Oil Co., 102 N.J. Super. 459 (Ch. Div. 1968). Tidewater‘s area sales manager conceded that such promotional signs were “of a temporary nature.”
Gargiulo‘s testimony indicates that beginning with 1957, with the exception of one year, he displayed some advertising
While the statute,
While impliedly conceding that the ordinance provision covers the device here involved, defendant argues that its continuance is lawful because it is itself a nonconforming use, or a use accessory to the principal use of the premises as a gasoline service station. We do not agree.
As noted, defendant‘s proofs revealed that promotional signs of approximately similar size had been furnished by Tidewater and put up at the service station as far back as 1957. None of these was intended for use for more than a short period. Whether a sign was put up depended on Tidewater‘s advertising program, and there was one year when there was no promotion at all.
While business signs may attain the status of nonconforming uses, United Advertising Corp. v. Borough of Raritan, supra, at p. 150; State v. Huntington, 145 Conn. 394, 143 A.2d 444, 447 (Sup. Ct. Err. 1958), the temporary
Nor was maintenance of the device justified as a use accessory to the principal use of the premises. To qualify as such use, it was necessary that it be clearly incidental to and customarily found in connection with the principal use to which it is allegedly related. 1 Rathkopf, The Law of Zoning and Planning, at p. 23-1 (1966). A principal use generally carries with it all uses which are normally accessory, auxiliary or incidental thereto. City of Newark v. Daly, 85 N.J. Super. 555, 560 (App. Div. 1964), affirmed 46 N.J. 48 (1965). See also Zahn v. Newark Bd. of Adjustment, 45 N.J. Super. 516 (App. Div. 1957). So considered, we are satisfied and hold that display of the banner in question was not such an accessory use. Defendant was entitled and has been permitted to continue to display the customary signs associated with the operation of the gasoline service station which were in use at the time the 1961 ordinance was enacted. See Ackerman Fuel Oil Co. v. Board of Adjustment of Borough of Paramus, 136 N.J.L. 93, 95 (Sup. Ct. 1947). As noted, he was subsequently allowed additional signs. Every means of promoting the sale of products dispensed by a dealer does not, per se, qualify as a use clearly incidental to and customarily found in connection with the dealer‘s business. Undoubtedly, a free barbecue, a balloon ascension or a concert by the Beatles would have great value as promoters of the gasoline business, but it can hardly be said that they should be permitted as auxiliary uses to a gasoline service station where otherwise prohibited by the zoning ordinance. An accessory use may not be permitted to depend upon the whim or ingenuity of those engaged in sales promotion. It requires considerably more substance, especially where, as here, the principal use is a nonconforming one which may not be extended without a variance.
We have reviewed the remaining grounds for reversal and find them to be without merit. There was proof of defendant‘s guilt beyond a reasonable doubt. The State made out a prima facie case through the testimony of the zoning officer, and when defendant failed in his attempt to establish that the use was a permitted one, the State‘s case was complete. See Andover Tp. v. Lake, 89 N.J. Super. 313 (App. Div. 1965); Weber v. Pieretti, supra, 72 N.J. Super., at p. 195.
The fact that the complaint referred to a violation of the “variance” does not detract from the validity of defendant‘s conviction. The enabling statute,