author: Fritz, J. S. C.

text:
    HENRY J. MOLA AND EILEEN MOLA, PLAINTIFFS, v. CLYDE REILEY, INDIVIDUALLY AND AS THE BUILDING INSPECTOR OF THE BOROUGH OF MOUNTAIN LAKES AND THE BOROUGH OF MOUNTAIN LAKES, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided April 10, 1968.

      Mr. Daniel E. Isles for plaintiffs (Messrs. Querques & Isles, attorneys).

      Mr. Reginald Stanton for defendants (Messrs. Jeffers and Dillon, attorneys).
   Fritz, J. S. C.

Plaintiffs move for a summary judgment on their complaint in lieu of prerogative writs seeking mandamus to compel defendant Building Inspector of the Borough of Mountain Lakes to issue a building permit for the installation of a 5,000-gallon steel gasoline tank and pump in and on plaintiffs’ premises, following his refusal to issue such a permit.

The single question is whether an owner is entitled as a matter of right to a building permit for an accessory use prior to any undertaking of the primary use to which the use sought is said to be accessory. The problem does not appear to have been considered heretofore in New Jersey.

The salutary purposes of summary judgment should be noted at the outset.

“* * * [Summary judgment] is designed to provide a prompt, businesslike and inexpensive method of disposing of any cause which a discriminating search of the merits in the pleadings, depositions and admissions on file, together with the affidavits submitted on the motion clearly shows not to present any genuine issue of material fact requiring disposition at a trial. Shientag, 4 Ford L. Rev. 186 (1935). In conjunction with the pretrial discovery and pretrial conference procedures, the summary judgment procedure aims at ‘the swift uncovering of the merits and either their effective disposition or their advancement toward prompt resolution by trial.’ Clark, The Summary Judgment, 36 Minn. L. Rev. 567, 579 (1952). Even when a case for summary judgment is not made out, the procedure can be a valuable adjunct to pretrial conference procedure when, as may be done under R. R. 4:58-4, there results an order specifying the facts that exist without substantial controversy and directing such further proceedings in the action as are just. Cooper v. Jeter, 17 N. J. Super. 180 (Cty. Ct. 1951).” Judson v. Peoples Bank & Trust Co. of Westfield, 17 N. J. 67, 74 (1954).

Considerations limiting the granting of summary judgment are equally important:

“The standards of decision governing the grant or denial of a summary judgment emphasize that a party opposing a motion is not to be denied a trial unless the moving party sustains the burden of showing clearly the absence of a genuine issue of material fact. At the same time, the standards are to be applied with discriminating care so as not to defeat a summary judgment if the movant is justly entitled to one.
Thus it is the movant’s burden to exclude any reasonable doubt as to the existence of any genuine issue of material fact, 6 Moore’s Federal Practice, par. 56.15(3). The phrasing of our rule, R. R. 4:58-3, slightly different from Federal Rule 56 (a). underscores this in the requirement that the absence of undisputed material facts must appear ‘palpably.’ All inferences of doubt are drawn against the movant in favor of the opponent of the motion. The papers supporting the motion are closely scrutinized and the opposing papers indulgently treated, Templeton v. Borough of Glen Rock, 11 N. J. Super. 1, 4 (App. Div. 1950). * * Judson v. Peoples Bank & Trust Co. of Westfield, supra, at pages 74-75.

Plaintiffs bottom their purported right to the gasoline tank and pump upon their admitted right to use the premises for “garaging and/or servicing of motor vehicles,” a use permitted by section 5.1.4 of the zoning ordinance of the Borough of Mountain Lakes. That a primary use in the nature of the business of garaging or servicing of motor vehicles or both is intended by that section is clear.

There appears to be no controversy with respect to certain of the facts. Plaintiffs are the owners of parcels of vacant land in the Borough of Mountain Lakes, located within a zoning district known as Business Zone B. Ho proof is offered by plaintiffs on this motion as to the actual use of the land. The affidavit of defendant building inspector, which, in addition to being uncontroverted, must be “indulgently treated,” Judson v. Peoples Bank & Trust Co. of Westfield, supra, clearly reflects that the land is presently being used by plaintiffs, or one of them, not for any permitted use, but rather, in contravention of the zoning ordinance. He states:

“* * * I was and am personally familiar with the use to which the plaintiffs were and are putting the premises. At all times relevant to the application, Henry J. Mola was engaged in at least three businesses: Cesspool Cleaning, Garbage Collecting, and General Contracting, none of which is a permitted use in a Business Zone ‘B.’ He used the premises in question for parking and storing a large number of vehicles used in those businesses. He has also used the premises for piling or dumping trash, junk and waste materials. Garbage and cesspool cleaning trucks are parked and stored on the premises and give off foul and noxious odors. The vehicles and machinery are stored, dismantled and abandoned on the premises. There are frequently ten or more vehicles lying about the premises. There is no building on the premises and all of the above uses and acts occur in the open.”

As noted above, the inquiry is whether under any circumstances a building permit can be compelled for an accessory use prior to any undertaking of the primary use. A resolution of the matter starts with a determination as to the nature of an accessory use. An accessory use has been defined as one “customarily incidental to the principal use of a building,” Zahn v. Newark Board of Adjustment, 45 N. J. Super. 516, 522 (App. Div. 1951). See also State v. Mair, 39 N. J. Super. 18, 23 (App. Div. 1956). This typical definition was expanded in Borough of Chatham v. Donaldson, 69 N. J. Super. 211, 282 (App. Div. 1961), and Borough of Northvale v. Blundo, 85 N. J. Super. 56, 60 (App. Div. 1964), to include the explanation that “the [accessory] use be so necessary or commonly to be expected that it cannot be supposed that the ordinance was intended to prevent it.’ ” This expanded definition suggests that an accessory use might thereby attain the status of an unexpressed permitted (i. e., primary) use, the theory being that the accessory use is so customarily incidental to the primary use and therefore to be expected, that a fictional legislative intent to include such a use might be presumed. We do not believe that this expansion, in each case appearing on appeals from conviction of violation of zoning ordinances, was intended to assert such a broad impact on traditional zoning theories.

That the nature of an accessory use is something less than a primary permitted use is demonstrated by a characterization of accessory uses as “dependent on” or “pertaining to.” Town of Needham v. Winslow Nurseries, 330 Mass. 95, 111 N. E. 2d 453, 451, 40 A. L. R. 2d 1450 (Sup. Jud. Ct. 1953). As noted above, the New Jersey definition ascribes incidence. “Incident” is defined as “something dependent upon, appertaining or subordinate to, or accompanying something else of greater or principal importance; * * * something arising or resulting from something else of greater or principal importance.” 1 Webster’s Third New International Dictionary (1964), p. 1142. Chief Justice Weintraub, then sitting as a trial judge in the Law Division, attributed subordination to the meaning of incidental use thusly:

“* * * A use is thus incidental so long as the main use of the dwelling remains residential and the occupational activity is factually subordinate. * * Jantausch v. Borough of Verona, 41 N. J. Super. 89, 98 (Law Div. 1956).

Rathkopf, in a chapter devoted to accessory uses, comments:

“* * * These quasi-business uses are permissible as long as the type and magnitude of the business uses are such as to render them incidental to the primary residential use. When, however, they attain such magnitude as no longer to be incidental, they lose their status as an accessory use. In other words, the tail cannot wag the dog, and the work cannot be conducted in such a fashion that it is of equal importance to the use of the building as a residence.” 1 Rathkopf, The Law of Zoning and Planning, (3d ed. 1960), p. 23-7.

A primary use must be and must continue to be dominant to an accessory use. State v. Mair, supra; see Keller v. Town of Westfield, 39 N. J. Super. 430 (App. Div. 1956).

Accordingly, it would appear that before a permit for an accessory use may be obtained, a primary use to which the accessory use is incidental and subordinate must be demonstrated. The requirement of subordination of the accessory use to the primary use, by itself, frustrates the application for such an accessory use without a demonstration of the primary use. City of Warwick v. Campbell, 82 R. I. 300, 107 A. 2d 334 (Sup. Ct. 1954).

Relying on the authority of Guttman v. Borough of Bradley Beach, 15 N. J. Super. 409 (App. Div. 1951), plaintiffs contend that the building inspector has no authority to inquire into the primary use nor to speculate as to what primary use the property might be put. The Guttman case is clearly distinguishable. There a dwelling house existed in a zone in which one-family houses were permitted, but two-family houses were prohibited. A permit to allow plaintiffs to lay a wooden floor in the cellar was denied because it “evidenced an intention to permit occupancy by more than one family,” in violation of the ordinance. Denial of the relief sought by plaintiffs was reversed. The court held that the borough could not speculate as to whether the construction was to implement an existing use in a lawful or in an unlawful manner. The matter sub judice does not rest on a determination by the building inspector that the proposed use would be unlawful, if in fact such a determination was made. (The letter of the building inspector advising one of the plaintiffs of the denial ascribes the refusal to the fact that “The installation is not a permitted primary use and is not accessory to a permitted primary use * * *.”) Bather, it turns, as set forth above, on the fact that there cannot be an accessory use where, as here, there is no demonstration of the primary use.

Plaintiffs’ motion for summary judgment is denied.

       The suggestion appeared in an affidavit and on argument that issues which may concern the legality of the use are presently being tested in a Chancery action. While this court may take judicial notice of the pendency of such an action, it is of no moment here. The existence of such an undetermined action and the proofs appearing therein, if any, are no part of this case, nor do they, at least prior to judgment, limit that which might otherwise be relevantly argued here.

       Rathkopf distinguishes between the “true accessory use” and that which appears to be an accessory use but is in fact an integral part of the primary use and attributes different legal consequences. 1 Rathkopf, The Law of Zoning and Planning, (3d ed. 1960), p. 23-24.


source: Caselaw Access Project

author: Seidman, J. C. C.

license: Public Domain

text:
    STATE OF NEW JERSEY v. EZANE TOLBERT, DEFENDANT.
    Middlesex County Court Criminal Division
    Decided April 4, 1968.

      Mr. Ronald S. Kolsky for defendant (Messrs. Bahr and Kolsky, attorneys).

      Mr. Peter J. Schwartz, Assistant Prosecutor, for the State of New Jersey (Mr. Edward J. Dolan, Middlesex County Prosecutor).
   Seidman, J. C. C.

Pursuant to R. R. 3:2A-6(a), defendant seeks to suppress evidence of a blood test and the results thereof in a ease pending against him in the North Brunswick Township Municipal Court for driving while under the influence of intoxicating liquor.

The facts are not in substantial dispute and can be stated concisely. On December 10, 1967, at approximately 5:30 p.M., a pickup truck operated by the defendant ran off the road and collided with an adjacent concrete abutment. While rescue squad personnel were removing the defendant from behind the steering wheel and placing him in an ambulance, the investigating police officer detected an odor of alcohol on his breath. Later, in the hospital emergency room, the officer unsuccessfully sought to elicit details of the accident from the defendant, who was stuporous and semi-conscious and apparently could not recall or relate what had happened. When the officer informed the defendant of his intent to have a blood sample taken because of his belief that the defendant had been drinking, the response was only a grunt. A physician explained the procedure in detail to the defendant, he was propped up and a pen placed in his hand, and he signed a form of consent for the blood test. The defendant showed only a slight awareness of what was going on and did not respond verbally. A specimen of blood was then extracted for the purpose of determining the alcoholic content. The result of the test is not disclosed.

■Defendant does not claim that the taking of the blood sample was a constitutionally illegal search and seizure, and the record does not suggest that the procedure utilized to measure the blood-alcohol level was unreasonable. See Schmerber v. State of California, 384 U. S. 757, 86 S. Ct. 1826, 16 L. ed. 2d 908 (1966). He contends his statutory rights were infringed in that he did not knowingly and voluntarily consent to the extraction of the blood, and he was not under arrest at the time. The prosecutor concedes the physical and mental inability of the defendant to give a rational consent to the test. His position is that the blood test was reasonably incident to an arrest and no consent was necessary in the circumstances.

It is settled that the taking of specimens of bodily substances for the purpose of making chemical tests to determine blood alcohol content constitutes a search of the suspect and antecedently depends upon a valid seizure of his person. State v. Swiderski, 94 N. J. Super. 14 (App. Div. 1967); State v. Harbatuk, 95 N. J. Super. 54 (App. Div. 1967). Although defendant’s assertion that no arrest had taken place seems inconsistent with his concession that his constitutional rights had not been invaded; the court, in any event, is satisfied that the defendant’s detention at the hospital, in the then existing circumstances, was justified, irrespective of whether such detention was technically an arrest; or, if it was, whether the arrest was invalid because it was without a warrant, the alleged offense not having been committed in the officer’s presence. N. J. S. A. 39:5-25. Although the defendant does not raise the issue of arrest without warrant, I deem it advisable to consider the point sua sponte, in view of the recent case of State v. Gillespie, 100 N. J. Super. 71 (App. Div. 1968), decided after the instant matter was heard.

Gillespie involved an appeal from a conviction of driving a motor vehicle while under the influence of intoxicating liquor. The facts were that the police officer who came to the scene of a collision between the defendant’s automobile and a parked car observed the defendant leaning against the car which had been struck. After interrogation, the defendant was, arrested for drunken driving. One of the arguments presented was that all the incriminatory evidence elicited after tfie arrest was the fruit of an illegal arrest. Although the .court accepted the premise that a warrant was required for tbe arrest, since the alleged violation was npt in the presence of the officer, the conviction was, nevertheless, affirmed. The following excerpt from the court’s opinion is pertinent :

However, we conclude that notwithstanding the technical invalidity of the arrest, the subsequent enforced subjection of the defendant to examination for intoxication was justified as an emergency measure to assure the State against loss of evidence of defendant’s guilt of an oifense which, although not graded a crime, is of a kind which poses an extremely grave menace to the public safety and welfare.
Had the police officer refrained from immediate apprehension and subjection of defendant to physical examination, in order to accommodate the requirement that he first procure an arrest warrant, defendant might have absented himself until a time when his symptoms of inebriation were gone or had become minimal. Just as in Sehmerljer v. State of California, supra, where the involuntary taking for testing of the blood of an arrested suspect of drunken driving was sustained as an emergency measure notwithstanding the court was not satisfied that the act could be justified as a search incidental to an arrest, “[t]he officer in the present case * * * might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence.’ ” (Id., 384 U. S., at 770, 86 S. Ct., at 835). What in Sehmerljer was thus held, for emergency reasons, a justified transgression beyond the normal scope of a search incident to an arrest, is by unexceptionable analogy here authoritative to justify a forced examination of a person reasonably believed to be under the influence of intoxicating liquor notwithstanding the absence of a technical foundation for an arrest, as such. It does not appear that defendant was confined any longer than was necessary to conduct the examination. The totality of circumstances made the seizure “reasonable.” Cf. State v. Boykins, 50 N. J. 73, 78 (1967).

The more substantial issue raised by the defendant is whether the conceded lack of consent rendered the blood test invalid for other than constitutional reasons. It should be observed that, in the case of Breithaupt v. Abram, 352 U. S. 432, 77 S. Ct. 408, 1 L. ed. 2d 448 (1957), involving a test based on a sample of blood taken, at the request of a police officer, by a physician frolxi the accused while the latter was unconscious, it was held that the absence of conscious consent, without more, did not necessarily render the taking a violation of a constitutional right.

Defendant contends that the consent requirement is statutory, and he cites in support of his position the cases of State v. Blair, 45 N. J. 43 (1965) and State v. Swiderski, supra. In Blair, the court commented, in passing, “We note N. J. S. A. 39 :4-50.1 which requires that express consent be given by defendant before a blood specimen can be taken from him. This requirement is apart from the issue here on appeal and must be met.” Swiderski held that the Legislature, prior to amending N. J. S. 39 :4-50.1 in 1966, expressly required consent as a condition precedent to any chemical test or analysis for drunkenness.

There is no doubt that the language of the former statute specifically required such consent. As it was then worded, N. J. S. 39:4-50.1 created certain presumptions arising from the amount of alcohol in a defendant’s blood as shown by chemical analysis of the defendant’s blood, urine, breath, or other bodily substance; and specifically stated that “No chemical analysis, as provided in this section, or specimen necessary thereto, may be made or taken unless expressly consented to, or requested by, the defendant.” The 1966 amendment deleted the quoted sentence and added another section, N. J. S. 39:4-50.2, providing as follows:

(a) Any person who operates a motor vehicle on any public road, street or highway or quasi-public area in this State shall be deemed to have given his consent to the taking of samples of his breath for the purpose of making chemical tests to determine the content of alcohol in his blood; provided, however, that the taking of samples is made in accordance with the provisions of this act and at the request of a police officer who has reasonable grounds to believe that such person has been operating a motor vehicle in violation of the provisions of section 39:4^50 of the Revised Statutes.
(b) A record of the taking of such sample, disclosing the date and time thereof, as well as the result of any chemical test, shall be made and a copy thereof, upon his request, shall be furnished or made available to the person so tested.
(e) In addition to the samples taken and tests made at the direction of a police officer hereunder, the person tested shall be permitted to have such samples taken and chemical tests of his breath, urine or blood made by a person or physician of his own selection'.
(d) The police officer shall inform the person of his rights under subsections (b) and (c) of this section.
(e) No chemical test, as provided in this section, or specimen necessary thereto, may be made or taken forcibly and against physical resistance thereto by the defendant. (Italics supplied).

In lieu of the former requirement of express consent, there is now in effect what is called the implied consent law, incorporating a procedure leading to possible suspension or revocation of license by the Director of the Division of Motor Vehicles should the operator of a motor vehicle refuse to submit to the chemical test referred to in N. J. S. 39 :A-50.2. But the implied consent is limited to the taking of samples of breath. There is no provision in the amended statute for express consent to any kind of test.

Although N. J. S. 39:4-50.2 requires that the person tested must be advised of his right to receive or have made available to him, upon request, a copy of the record of the taking of the sample, as well as the result of any chemical test; and also of his right, in addition to the samples taken and tests performed, to have such samples taken and chemical tests of his breath, urine or blood made by a person or physician of his own choosing; these provisions must be read in the context of the entire section, and are clearly restricted in applicability to those instances when, by virtue of the statutory implied consent, samples of breath are taken for chemical analysis.

A change of language in a statute ordinarily implies a purposeful alteration in substance. Nagy v. Ford Motor Co., 6 N. J. 341, 384 (1951); Essex County Retail, etc. v. Newark, etc. Beverage Control, 77 N. J. Super. 70, 78 (App. Div. 1962); Stauhs v. Bd. of Review, Div. of Emp. Sec., 93 N. J. Super. 451, 457 (App. Div. 1967). If the legislature had intended to .retain express consent as a prerequisite to the taking of , samples of bodily substances other than breath, it could have- done so in the amended statute. The Court must interpret and enforce the legislative will as written, and not according to some supposed unexpressed intention, and the court is not at liberty to indulge in the presumption that the legislative intended something more than what it actually wrote in law. Dacunzo v. Edgye, 19 N. J. 443, 451 (1955); In re Anonymous, 32 N. J. Super. 599, 609 (Ch. Div. 1954); Graham v. City of Asbury Park, 64 N. J. Super. 385, 394 (Law Div. 1960), rev'd 69 N. J. Super. 256 (App. Div. 1961), affirmed 37 N. J. 166 (1962).

Consequently, I hold that N. J. S. 39 :4-50.2 does not require a person’s express consent to the taking of specimens of his bodily substance in order to determine the content of alcohol in his blood. Subject only to the limited requirements of that section respecting breath samples, such taking is permissible and the results of the test evidential where the person is charged with operating a motor vehicle either while under the influence of intoxicating liquor or while his ability to operate such motor vehicle is impaired by the consumption of alcohol; provided, of course, the intrusion into the body is justified and the means and procedures employed reasonable, within the context of Schmerber v. California, supra.

It being conceded in the ease sub judice that there is no issue of a search and seizure which encroached upon the defendant’s constitutional rights, the defendant’s motion to suppress is denied.


author: Labrecque, J. A. D.

text:
    STATE OF NEW JERSEY IN THE INTEREST OF W. O., A JUVENILE.
    Superior Court of New Jersey Appellate Division
    Argued November 20, 1967
    Decided April 16, 1968.

      Before Judges Conford, Collester and Labrecque.

      Mr. Elliot M. Baumgart, assigned counsel, argued the cause for appellant juvenile (Messrs. Stephen B. Bing and Marie Gasarch, of counsel and on the brief).

      Mr. James B. Zazzali, Assistant Prosecutor, argued the cause for the State as respondent (Mr. Brendan T. Byrne, Essex County Prosecutor, attorney).
   The opinion of the court was delivered by

Labrecque, J. A. D.

W. O., a juvenile aged 17, appeals from his conviction in the Essex County Juvenile Court on charges of robbery and larceny.

The larceny complaint charged that on January 20, 1967 he took the sum of $9 from Edward James. The robbery complaint charged that, at the point of a black revolver, he took 81 cents from Ronald Chapman, $2 from William Chapman and $1 from Nathaniel Johnson on January 21, 1967.

Hearings on the two complaints took place on the same day, the January 21 complaint being first tried. Appellant contends that prior to the taking of testimony his counsel moved that all witnesses be sequestered. The motion was granted as to all except the two police officers (attached to the Youth Aid Bureau) who had signed the complaints. Later, when the three complaining witnesses to the occurrence of January 21 were called into the courtroom together, counsel moved to sequester them so that they would not- be testify^ ing in one another’s presence but they were permitted to remain.

In the absence of - a stenographic record, a “statement of proceedings” was prepared by the trial judge pursuant to R. R. 1:6-3, made applicable by R. R. 2:6. It recited that Johnson and -the two Chapman boys testified that they had been shopping on Springfield Avenue, Newark, when appellant, dressed in a black leather coat and a “tarn” hat, came up to them and asked for' money. He produced a revolver (William Chapman, the oldest of the three, didn’t think it was a real one) which one of' them thought was “as much as eight or nine inches long.” Appellant thereupon took $2 from William, 81 cents from Ronald, and $1 from Johnson and fled. The police were notified and, on the basis of a description obtained- from the three boys, appellant was picked up. The three later identified him at the Fourth Precinct. Two of them testified that they had seen him once after the robbery, at which time he had again tried to obtain money.

The other complaining witness, Edward James, aged 14, testified that on January 20, as he was walking down Bran-ford Place, Newark, the appellant and another boy asked him if he had 50 cents. When he said no, appellant, who was wearing a tarn hat and a dark jacket, took his wallet containing $9 and fled. He, too, reported the incident to the police and picked out the appellant from a number of pictures shown to him by the police. Later, when the police brought appellant to Clinton Place Junior High School, he identified him in person.

Appellant denied being present on either occasion, asserting that he had never seen any of the complainants until the day they identified him and that on January 20 and 21 he was working for Harvey Smith, his brother-in-law, at the latter’s furniture warehouse. Smith, called as a witness, was unable to positively state that appellant was on the job on the two days in question but said that he had a record book at home which would show this. He was excused from the stand to secure the book and return with it but failed to do so. Later, after several telephone calls from the court, one of his employees produced a ledger which, upon examination, was found to contain nothing to indicate that appellant had been at work there on- January 20 or 21. This same employee was permitted to testify and said that, on some day — he did not know the day of the month but it was when appellant was accused of taking money from a boy — appellant had been working with him.

No case has been cited in which our courts have had occasion to pass upon whether a motion for sequestration is properly cognizable at the trial of a complaint under the Juvenile Act, N. J. S. 2A :4-1 et seq. Such proceedings have been held to be rehabilitative rather than penal. In re State in the Interest of Carlo, 48 N. J. 224 (1966); N. J. S. 2A :4-2. The rules of evidence do not apply to the same extent as in ordinary criminal cases. See Annotation, "Applicability of rules of evidence in juvenile delinquency proceeding,” 43 A. L. R. 2d 1128 (1955). The full complement of constitutional rights does not attach. Kent v. United States, 383 U. S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966); In re State in the Interest of Carlo, supra, pp. 234-35; Ex parte Newkosky, 94 N. J. L. 314, 316-17 (Sup. Ct. 1920).

However, in In re Gault, 387 U. S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967) it was held that proceedings in the Juvenile Court were subject to the constitutional requirement of due process of law. And in In re State in the Interest of Carlo, supra, a juvenile was held entitled to the constitutional safeguard of voluntariness in connection with the use of his alleged confession. Further, in State in the Interest of L. B. (J. & D. R. Ct. 1968) it was held that a motion to suppress evidence obtained by an unlawful search and seizure was cognizable in the Juvenile and Domestic Relations Court.

There can be no doubt as to the right to cross-examine witnesses in a proceeding in the Juvenile Court. In re Gault, supra, 387 U. S. at page 57, 87 S. Ct. 1428. We perceive no reason why the procedural tool of sequestration, which is calculated to prevent witnesses from being “educated” by the testimony of the witnesses who precede them, should not likewise be available to juvenile defendants. Wigmore. quoting the Bible story of Daniel’s judgment in Susanna’s case as one of its earliest applications, ranks it just below cross-examination as a device to expose untruthfulness. 6 Wigmore, Evidence (3d ed. 1940), § 1837 et seq. As far back as State v. Zellers, 7 N. J. L. 220, 226 (Sup. Ct. 1824), the then Chief Justice noted that:

“We have often made rules to that effect, to prevent their hearing what the other witnesses detail in their evidence, for the less a witness hears of another’s testimony the more likely is he to declare his own knowledge simply and unbiassed.”

Generally, the granting or denial of a motion for sequestration is a matter calling for the exercise of the court’s sound discretion, having in mind the circumstances of the particular case. State v. Williams, 29 N. J. 27, 46 (1959). Ordinarily, such a motion should be granted and its denial should be based upon sound reasons.

We can conceive of no reason which would have compelled exclusion of the two police officers. While they were pro forma complainants they had no personal knowledge of the commission of the offenses charged. As officers connected with the Youth Aid Bureau it was within the court’s discretion to permit them to remain. State v. Barts, 132 N. J. L. 74, 83-84 (Sup. Ct. 1944), affirmed 132 N. J. L. 420 (E. & A. 1945). Likewise, no reason appears why James should have been excluded since he was the sole witness to the offense of January 20, 1967.

We are inclined to the view that the motion should have been granted as to William Chapman, Ronald Chapman and Nathaniel Johnson but conclude that appellant suffered no prejudice from the court’s failure to do so. The key issue upon which the case rested was the identification of appellant. There was no possibility that the testimony of one cithern would have served to .“educate”«'the-others since.two of them had seen appellant .after the commission of - the' offenses and all had previously identified him' at police head-’ quarters. Our consideration of-their testimony as revealed in the court’s statement (and appellant’s proposed statement as well) satisfies us that appellant suffered no harm' from their simultaneous presence in the courtroom. Cf. State v. DiModica, 40 N. J. 404, 414 (1963).

Appellant next contends- that the “statement of the evidence” permitted by R. R. 1:6-3 in the absence of a stenographic transcript inadequately preserves the record of the proceedings and thus denies him an effective appeal. He notes that in juvenile proceedings the prosecutor does not ordinarily appear and the examination of the juvenile is conducted by the judge. When no transcript is made and an appeal is taken, the appealing juvenile is placed in the position of having the record made up by the judge whose decision is under review. He argues that the lack of neutrality of the judge in such a situation compels a finding that the appellant is thus deprived of due process.

Initially, it is to be noted that counsel for the juvenile did submit to the trial judge a seven page (proposed) “statement of proceedings” and served a copy thereof on the county prosecutor. Since the prosecutor was not present at the hearing he was unable to concur in the statement or submit a counterstatement. The judge’s “statement” appears to be more complete than the one prepared by appellant. It is not contended that they vary in any substantial degree. The single exception called to our attention is the trial judge’s omission to refer to a second motion to sequester which is-mentioned in appellant’s proposed statement. This discrepancy poses no difficulty since it was conceded at the oral argument that two such motions were made, one at the beginning of the hearing and the other when the three complaining witnesses were brought into the hearing room together.

. Wholly aside, we conclude that the procedure for reconstruction of the record provided by R. R. 1:6-3 and followed here satisfies the essential elements of due process. Cf. State v. Smith, 84 N. J. Super. 452, 456-57 (App. Div. 1964), certification denied 43 N. J. 270 (1964). In its pertinent parts it requires that the appellant serve on the respondent his “statement of evidence” to which respondent is required to make objection or propose amendments within ten days after service. Thereupon the statement with the objections and proposed amendments is submitted to the court for settlement. If the record as certified by the court is conceived to be incorrect by a party, he may move to correct or modify it. R. R. 1:6-6; Yoerg v. Northern New Jersey Mtg. Associates, 44 N. J. Super. 286, 289 (App. Div. 1957); State v. Zoppi, 72 N. J. Super. 432, 435 (App. Div. 1962). Here, as noted, appellant submitted such a statement and, with the single exception noted above, its contents were substantially embodied in the statement certified by the court. There was thereafter neither objection nor any request for hearing on any alleged discrepancy or inaccuracy. Thus the statement was prepared with appellant’s full participation.

Appellant’s final contention is that the omission to require that in all cases a stenographer be present to record the testimony at a trial in the Juvenile Court deprived him, as an indigent juvenile, of the equal protection of the laws. He argues, in substance, that since R. R. 6 :2-10 (then in effect) provided for the making of a stenographic record upon the order and at the expense of a party desiring the same, it was discriminatory as to those, like himself, who were unable to pay for such a transcript. Appellant cites no case in which a provision similar to the one referred to has been held to be constitutionally defective. He relies on Griffin v. People of State of Illinois, 351 U. S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956) and cases which have followed it such as Eskridge v. Washington State Board, 357 U. S. 214, 78 S. Ct. 4061, 2 L. Ed. 2d 1269 (1958); Burns v. State of Ohio, 360 U. S. 252, 79 S. Ct. 1164, 3 L. Ed. 2d 1209 (1959); Draper v. State of Washington, 372 U. S. 487, 83 S. Ct. 774, 9 L. Ed. 2d 899 (1963) and State v. Welch, 46 N. J. 57 (1965).

We find none of the cited cases to be apposite. Griffin holds that where a stenographic transcript is a prerequisite to full appellate review of his case and such a transcript has been made below, the denial of a free copy thereof to an indigent defendant violates the due process and equal protection clauses of the Fourteenth Amendment. State v. Welch, supra, which followed Griffin, held that where the original appeal had been dismissed for defendant's failure, by reason of his indigency, to order and file a transcript, and such transcript was no longer available, defendant was entitled to a new trial.

We therefore hold that the omission to provide for a stenographic transcript of the hearing did not amount to a deprivation by appellant of the equal protection of the laws. We note that following the filing of the present appeal R. R. 6:2-10 was amended, effective September 11, 1967, to provide, with certain exceptions not here relevant, for the verbatim recording of hearings and trials in Juvenile and Domestic Relations Courts.

The judgment is affirmed.


author: Goldmann, S. J. A. D.

text:
    DEPARTMENT OF HEALTH, STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. OWENS-CORNING FIBERGLAS CORPORATION, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 29, 1968
    Decided April 17, 1968.

      Before Judges Goldmann, Kilkenny and Carton.

      Mr. James Hunter, III argued the cause for appellant (Messrs. Archer, Greiner, Hunter & Read, attorneys; Mr. W. Thomas Grimm, on the brief).

      Mr. Richard J. Sauerwein, Deputy Attorney General, argued the cause for respondent (Mr. Arthur J. Sills, Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Goldmann, S. J. A. D.

Defendant Owens-Corning Eiber-glas Corporation (Owens-Corning) appeals from an order and amended order of the State Department of Health (Department) directing that it cease violation of chapter VI, section 2.1 of the New Jersey Air Pollution Control Code (Code) and forthwith take certain specified interim measures to minimize air pollution caused by its plant operations.

The proceedings before the Department were instituted by a complaint dated September 28, 196.6, alleging that on ten specified dates during July and August of 1966 Owens-Corning

“did cause, suffer, allow or permit air pollution by emitting substances into the outdoor atmosphere from [its premises in Barrington, Camden County] in such quantities as to be injurious to human or plant life, or property, or to unreasonably interfere with the comfortable enjoyment of life and property in violation of Chapter VI, Section 2.1 of the New Jersey Air Pollution Control Code, a copy of which is annexed hereto and made a part hereof.”

Chapter VI, section 2.1 of the Code provides:

i “No person shall cause, suffer, allow or permit to he emitted into the outdoor atmosphere substances in quantities which shall result in air pollution.”

“Air pollution,” as used in chapter VI, is defined in chapter I, section 1.10 of the Code in the same language as appears in the Air Pollution Control Act (1954), N. J. S. A. 26 :2C-2:

“ ‘Air pollution’ * * * shall mean the presence in the outdoor atmosphere of substances in quantities which are injurious to human, plant or animal life or to property or unreasonably interfere with the comfortable enjoyment of life and property throughout the State and in such territories of the State as shall be affected thereby and excludes all aspects of the employer-employee relationship as to health and safety hazards.”

Accompanying the Department’s complaint was a notice directed to Owens-Corning of a hearing on October 25, 1966. The hearing began as scheduled and continued over a series of dates until early 1967. The hearing officer throughout all phases of this matter was E. Powers Mincher of the Department. Since chapter VI of the Code does not provide measurable standards in the form of specific limits for emissions to the atmosphere, this first or preliminary hearing was k procedural prerequisite to the issuance of any order, by reason of N. J. S. A. 26 :2C-14, third paragraph, which reads:

“In any ease where no code, rule or regulation has been promulgated which sets specific limits for emissions to the atmosphere of the type discovered and alleged, no order to cease such emissions shall be issued until the holding of a preliminary hearing thereon which shall be held upon not less than 15 days’ notice by the department [State Department of Health] to all interested persons.” s

On March 9, 1967 State Commissioner of Health Handle issued the first of the two orders’ under appeal. It recited that he had given due consideration to the transcript of the hearing, the findings and recommendations of the hearing officer, and the brief submitted by counsel for Owens-Corning. He found that the company had violated chapter VI, section 2.1 of the Code and directed that it cease such violation on or before January 1, 1968 and forthwith take interim measures (set out at length) to minimize the effects resulting from its plant operations. Upon receipt of that order, Owens-Corning, acting pursuant to N. J. S. A. 26:2C-14.1, applied for a hearing as an aggrieved party. It also requested a stay of the order.

N. J. S. A. 26:2C-14.1 provides that any person aggrieved by an order of the Department may, upon application made within 15 days after notice of such order, be entitled to a hearing before the Department. Within 30 days after the hearing the Department shall issue an appropriate order modifying, approving or disapproving its prior order. Pending such determination, and upon application for a stay, the Department may stay the operation of its order upon such terms and conditions as it deems proper.

Acting upon- Owens-Corning’s application, Commissioner Handle fixed a hearing' date, denied its request for a stay, .and asked the company for particulars as to its claimed grievance. Owens-Corning replied by. letter of April 25, 1967, alleging that the March 9 order was not supported by the record; it was improper since there existed no authority justifying the imposition of .interim requirements; the order went beyond the terms of the statute and the Code; it failed to state the specific items found to be in violation; the order was unreasonable as. to time and measures; it was vulnerable for vagueness and “impossibility,” and was arbitrary, capricious and discriminatory.

The second (grievance) -hearing was held on May 1, 1967. Owens-Corning objected to Mincher sitting as hearing officer, claiming that he was in effect sitting “on an appeal from your own order.” The objection was overruled. Following the hearing, Commissioner Handle issued an amended order on May 29, 1967, reciting that he had given due consideration to the transcript of the second hearing and the findings and recommendations of the hearing officer, as.well as the brief submitted on behalf of Owens-Corning. He adopted the findings, conclusions, and recommendations of the hearing officer, found that Owens-Corning had been aggrieved by the March 9 order, and that the order should be amended by extending the time within which the company was to comply with chapter VI of the Code from January 1 to April 1, 1968, and by deleting the paragraph of the prior order relating to stack heights. With the exception of these two amendments, the- new order, repeated the language of- the March 9 order, including the specific interim measures-the company was to take.

II

■Owens-Corning owns and operates a plant in Barrington, .Camden County,' where it manufactures various fiberglas products. It uses four production lines, known as U-1, U-2, T and P-20, in its operations. The basic, process on all four lines is this: Raw materials are conveyed from a storage 1 area and fed into a glass melting furnacé. The material is then passed through a spinning operation which converts the molten glass into fiberglas, at which time a phenol formaldehyde resin is injected for binding purposes. The material is then cooled and conveyed into a curing oven after passing through several conveyors which control the thickness of the material. Prom the curing oven the material enters the fabricating stage where it is cut to size and packaged. The completed product is then sent to the warehousing area for shipment. .

The issue to he determined at the first (preliminary) hearing was whether Owens-Corning had violated chapter VI, section 2.1 of the Code on the dates specified. The Department presented its case in two separate but related main phases. The first consisted of the testimony of 11 witnesses who lived close to or within a reasonable distance of the plant. They testified to the fumes, smoke and blue haze coming from the plant and to the effects they had suffered therefrom, demonstrating how, in various ways, their daily lives and property had been interfered with. Their complaints included a tearing and burning of the eyes, “runny” noses, a dry and “funny” taste in the mouth, nausea and coughing. The odor and smoke are unbearable. Almost all testified that they had to close their windows and stay indoors because of the conditions experienced.

The second phase of the Department’s presentation involved technical evidence given by Joseph A. Rzigalinski, enforcement supervisor for the Department’s air sanitation (pollution control) program. His qualifications as an air pollution expert were not challenged. He had visited the plant on a number of occasions and described the manufacturing process on the four production lines. Rzigalinski explained that two areas in particular generated gaseous emissions the forming area and the curing area. He was present at the plant on February 17, 1966 at defendant’s invitation, the purpose being to observe an odor tracer survey of the “emissions-from the; dehumidification tower stack. Dr. Amos Turk conducted the survey on behalf of Owens-Corning, and this was done-when only the U-l line and its odor abatement equipment were in operation, all other production lines,being shut down. Dr. Turk’s test was solely for the detection of phenol odors. Despite all precautions taken by the plant, he found low level peaks of phenol odors during the test.

Rzigalinski visited the plant on May 19, 1966, again at defendant’s invitation, to observe tests of phenol odor emissions from the dehumidification tower stack oh the U-1 line. The test, conducted for defendant by William R. Bradley Associates, indicated that 0.22 parts of phenol per million parts of air were being emitted from the stack. According to Rzigalinski, 0.22 ppm. is below the so-called “odor threshold level” for phenol of 0.29 ppm. Hone of the other production lines were tested for its emissions, nor was the test concerned with odors other than phenol. On this visit Rzigalinski detected strong formaldehyde odors from the binding room area, as well as odors coming from roof ventilators above the curing oven and from openings on the roof above the melting and spinning operations.

Although Rzigalinski’s visits and the two surveys all predated the July and August 1966 complaint dates about which the Department’s 11 witnesses testified, there is a definite correlation between the two evidential patterns. Samuel Thomas, Owens-Corning’s Director of Environmental Control, admitted that the air pollution control equipment or devices at the plant were the same at the time he testified on January 9, 1967 as they had been for well over a year, except for a modification on the P-20 line in the fall of 1966. Moreover, there had been no substantial changes in the production process in that time except for some changes in chemicals or chemical processes in 1966. From this it may reasonably be said that conditions at the plant had not varied in any substantial degree as regards odor or smoke emissions - between the dates of Rzigalinski’s inspections and the two surveys,, and the' dates set out in the complaint.

(It is- appropriate to note at this point that the significance of the Turk and Bradley survey results and Rzigalinski’s testimony lies in their having been adapted- in the March 9, 1967 order.)

The record reveals that the Department had as early as May 1961, if not before, discussed with' representatives- of Owens-Corning the necessity of controlling emissions from its plant into the atmosphere. The company recognized-the existence- of the condition and was apparently trying to correct it. Numerous conferences and exchanges of cori respondence followed over the next five years, all dealing with the air pollution problem. Although Owens-Corning repeatedly assured the Department that it was taking definite steps to eliminate the condition, it failed to comply with its own timetables as well as the Department’s repeated requests that it control the emissions.

The Department’s long and patient wait for Owens-Corning to solve the air pollution problem came to an end when it received a letter from company vice-president Briley on June 21, 1966. He wrote that the company was dissatisfied with the dehumidification tower on the D-l line and accordingly did not intend to install similar equipment on the other three lines. Instead, Owens-Corning had directed its research center in Ohio to undertake a “crash” program at the Barrington plant. There would be a complete evaluation of these changes within the next six months, at which time the company would be in a position to know whether they were feasible. A timetable would then be developed to make the necessary process modifications as rapidly as possible. The Department filed its complaint soon after receipt of the Briley letter.

We take note of the reservation contained in Owens-Corning’s brief that all that had taken place before between the company and the Department was not to be considered as any admission of violation on its part. This flies directly in the face of the company’s very clear knowledge that emissions from its plant had for years been polluting the air in Barrington and neighboring communities. This - was made manifest in its conferences with Department representatives, in the letters it had written to the Department; and in its continued and protracted efforts to correct the situation.

Owens-Corning -presented seven lay witnesses at the preliminary hearing. They denied they had ever experienced any of the complaints testified to by the 11 Department witnesses, or that the plant operations had ever interfered, ;with their enjoyment of life and property. In evaluating the testimony of these witnesses it is to be observed that one lived next door to the company’s purchasing agent Maguire; another adr mitted that her son dated his daughter; a third testified that the company had always been very cooperative in donating door prizes for local sports events of which he was chairman; a fourth lived around the corner from Maguire, and yet another witness was a friend of his.

Owens-Corning produced three expert witnesses, the testimony of only one of whom, Thomas, concerns us here. He said that environmental control in the type of plant defendant operates is an entirely new field. He gave a history of the various tests that had been made and the equipment that had been installed in order to alleviate the complained-of condition. The company had spent over $3,289,000 on this program.

At the conclusion of the preliminary hearing defendant sought and received permission to file a brief. Hearing Examiner Mincher then submitted his report of the hearing, together with his findings and recommendations. There followed the Commissioner’s order of March 9, 1967 determining that defendant had violated the Code and ordering it to cease violation and take specified interim measures to minize the effects of its operations. Chief among these was that the company revise, remodel, repair or otherwise amend its U-2, T and P-20 production lines in such a way- that before effluents therefrom were discharged into the atmosphere the phenol odor reduction be equal or similar to, but no less efficient than, that accomplished by the system on the U-l line at the time of the Bradley survey on May 19, 1966. Such revision, remodeling and repair was to include a baffled spray section, a wet scrubber of the packed tower type, and a demister or any other equipment, devices or processes necessary to reduce the phenol content of the effluent to a concentration not greater than 0.29 parts per million of air by volume at the point of discharge. The company was also to reduce phenol and formaldehyde odors emitted from the resin formulation room by such methods as might be necessary to reduce the phenol content of the effluent to at least 0.29 ppm. and the formaldehyde content to at least 0.25 ppm. Further, it was to reduce the odor content of the effluent from the louvered exhausts of the glass melting and fiberizing areas, from the general plant interior ventilation systems, from the storage, material handling and other ancillary operations, and from any and all other plant processes, operations and activities. That part of the order directing Owens-Corning to complete and submit to the Department on or before June 1, 1967 detailed studies and plans and specifications for increasing the height of stacks on all curing and forming processes, is the one heretofore mentioned as having been omitted from the subsequent amended order.

At the second hearing held pursuant to N. J. S. A. 26:20-14.1 on defendant’s application as a party aggrieved, Owens-Corning sought to introduce certain evidence in support of its position, claiming that the proposed proofs had a direct bearing on other conditions which could have produced the same complaints as were testified to by the Department’s witnesses. The company offered to demonstrate, through Director Sullivan of the Division of Clean Air and Water, State Department of Health, and a report published by the committee of which he was chairman, that similar symptoms were caused by the exhaust fumes -from, motor vehicles. The hearing officer sustained plaintiff’s objection to any such testimony by Sullivan or the introduction of the report. The company next sought to establish the number of vehicles traveling within one mile of the plant, yearly and daily (average). This consisted of (1) a certificate from the New Jersey Turnpike Authority of the number of vehicles between Turnpike Exits 3 and 4 (the company’s plant is fairly close to the Turnpike at this point) for the year 1965 and the first six months of 1966, and (2) an official map for Camden County, to be presented by the head of the Traffic Count Section of the Bureau of Highway Statistics, State Highway Department,' showing the average daily total of vehicles for 1965. Objections to the introduction of these proofs were also sustained.

Eollowing the close of the hearing and the hearing officer’s report, findings and recommendations, Commissioner Handle issued the amended order here under appeal.

in

During the pendency of the appeal Owens-Corning filed two motions. The first sought leave to present additional evidence dealing with the population (1960 census figures) of the three municipalities from which the Department drew its witnesses. In its brief opposing the motion the Department included the 1966 population estimates of the State Department of Conservation and Economic Development. We received both sets of figures without prejudice as to their materiality or relevance.

The second motion was addressed to the record filed by the Department with this court on August 14, 1967. The record included the report, findings and recommendations made by the hearing officer after the preliminary hearing as well as those made after the grievance hearing. Owens-Corning contended that it had never been given an opportunity to review the reports, findings and recommendations, and to respond to, explain or controvert them. It moved that the proceedings be remanded to the Department for a de novo hearing or, in the alternative, for an opportunity to appear before the Commissioner to counter the hearing officer’s reports. We denied the motion.

IV

•Defendant contends that the Air Pollution Control Act, N. J. S. A. 26:2C-1 et seq., is unconstitutional because it delegates legislative power to an administrative agency, the Air Pollution Control Commission, without setting up a standard or standards to guide it in the exercise of that power.

The Commission was established by N. J. S. A. 26 :2C-3. That section was repealed by L. 1967, c. 106, § 16, effective June 15, 1967. The Commission was abolished and all of its functions, powers and duties transferred to the Department of Health by section 2 of that act, now N. J. S. A. 26:2C-3.1. Section 3 (N. J. S. A. 26:2C-3.2) created a Clean Air Council in the Department, and section 4 (N. J. S. A. 26:2C-3.3) listed the Council’s powers and duties.

Defendant does not contend that the Legislature may not, in the interest of the public health, enact legislation for the control of air pollution. Indeed, the safeguarding of the public health has long been considered an essential governmental function within the police power of the State. West Caldwell v. Caldwell, 26 N. J. 9, 30 (1958). The menace to the public health by air pollution is so much a matter of common experience as properly to be a subject of judicial notice.' Board of Health, Weehawken Tp. v. New York Central R. Co., 4 N. J. 293, 299 (1950).

Hntil 1954 efforts to control air pollution in-New Jersey proceeded as a local exercise of the state police power, under the public nuisance theory. Thus, in Garrett v. State, 49 N. J. L. 94 (Sup. Ct. 1886), it was indicated that the corruption of the air by noisome odors and smells, to the annoyance and inconvenience of the public, would constitute a public nuisance suppressible by the local board of health.

The 1954 Legislature enacted the first state-wide-legislation designed to attack air pollution on a comprehensive basis. L. 1954, c. 212, now N. J. S. A. 26 :2(7-1 et seq., the Air Pollution Control Act (1954). While no statement of general purpose accompanied this law, the Legislature did define “air pollution.” The definition, found in N. J. S. A. 26 :2C-2 and quoted earlier in this opinion, dealt with more' than just the protection of the public health (“the presence - in the outdoor atmosphere of substances in quantities which are injurious to human * * * life” — an embodiment of the. earlier public nuisance theory). The Legislature went beyond; that so as to encompass the promotion of the general public welfare with respect to air contamination which “unreasonably interfere [s] with the comfortable enjoyment of life and property throughout the State * * *.” As a measure whose clear purpose is the protection of the public health and public welfare, the 1954 act is entitled to a liberal construction for the accomplishment of its obvious beneficent objective. 3 Sutherland, Statutory Construction § 7203 (1943).

Additionally, there is a strong presumption in favor of the validity of the statute, and the burden of proving its unconstitutionality is “an extremely formidable one.” Levitt & Sons, Inc. v. Division Against Discrimination, 31 N. J. 514, 531 (1960), appeal dismissed 363 U. S. 418, 80. S. Ct. 1257, 4 L. Ed. 2d 1515 (1960); N. J. Restaurant Ass’n v. Holderman, 24 N. J. 295, 300 (1957). As was said in Lane v. Holderman, 23 N. J. 304, 323 (1957), a. statute “should be interpreted by a mind sympathetic to its aims which recognizes the difficulties inherent in formulating a precise expression of legislative intent in light of the diversity of circumstances to be covered.”

When dealing with the question of standards, a court is not confined to the specific terms of the particular section in question, but must examine the entire act in the light of its surrounding and ^objectives. Standards may; reasonably be implied from a consideration of the statutory scheme as a whole. Ward v. Scott, 11 N. J. 117, 123 (1952); In re Berardi, 23 N. J. 485, 491 (1957).

A statute need establish no more than a sufficient basic standard, i.e., a definite policy and rule of action which will serve as a guide for the administrative agency, in order for the delegation of legislative power to be deemed valid. See N. J. Bell Tel. Co. v. Communications Workers, etc., 5 N. J. 354, 370 (1950). Our courts and the United States Supreme Court have frequently dealt with the question here presented, and they have sustained many statutes containing broad, general standards. See the N. J. Bell Tel. Co. case, at pages 371-372, and Como Farms, Inc. v. Foran, 6 N. J. Super. 306, 311-312 (App. Div. 1950), for a discussion of some of these decisions. In the latter case, Judge (now Justice) Jacobs discussed the rather general nature of the standard controlling the exercise of authority by the Director of Milk Control. What he said is particularly applicable here:

“* * * [A]lthough it [the Milk Control Act] is general in nature it is no more so than similar standards in other enactments approved by our state and federal courts. Thus the Board of Public Utility Commissioners has been guided simply by the standard of ‘public convenience and necessity’ * * * and the Commissioner of Alcoholic Beverage Control with authority to fix prices and promulgate regulations * * * has been guided by the legislative pronouncement that the statute shall be administered in ‘such a manner as to promote temperance and eliminate the racketeer and bootlegger.’ * * (at page 332)

He observed that standards such as “excessive profits,” “just and reasonable,” “fair return” and “unfair methods of competition” had been approved by the United States Supreme Court.

The Air Pollution Control Act of 1954 does not offend the requirement that there be sufficient standards for the guidance of the administrative agency. In its definitive sense, “air pollution” is in itself a- standard, albeit -a broad one. That aside, an entirely adequate standard appears in the very definition of “air pollution” contained in N. J. S. A. 26:2C-2. By force of that definition, contamination of the air may be prohibited or controlled only under specifically defined circumstances, namely, where there is proof of injury to health or unreasonable interference with the comfortable enjoyment of life and property.

■Our Supreme Court’s description of the contents of the act in N. J. Dept. of Health v. Roselle, 34 N. J. 331 (1961), would militate against defendant’s present contention:

“* * * The Commission and the Department are given wide powers to meet the pressing dangers of air pollution. The Commission is authorized to adopt a code or rules and regulations ‘controlling and prohibiting air pollution,’ 27. J. S. A. 26:2C-8. The Department is directed to ‘control air pollution in accordance with any code, rule or regulation promulgated by the commission,’ with power to ‘(e) Receive or initiate complaints * * * and institute legal proceedings for the prevention of air pollution and for the recovery of penalties, in accordance with this act.’ 27. J. S. 4. 26 :2G-9.
The statute lays down the steps for enforcement of the code. * * * Thus the statute directs the Department to determine in plain terms what shall be done. * * *” (at pages 347-348) ,

Considering the nature and purpose of the Air Pollution Control Act, its need for flexibility, its standards when compared to those of other statutes that have been held valid, and its plainly sufficient procedural safeguards (e. g., N. J. S. A. 26:2C-8, 14, 14.1, 19 and 20), we conclude that the act does not lack adequate standards and that defendant has failed to sustain its burden in challenging the statute’s constitutionality.

TV

Defendant next claims that section 2.1 of chapter YI of the Code' is null and void because there is no statutory authority to adopt a' “catch-all” provision. The argument made is'that the Air Pollution Control Commission could not merely adopt a section of the act as a section of its Code, but vtas- obliged to define with reasonable specificity the conduct that would be considered a proscribed activity.

N. J. S. A. 26 :2C-8 authorizes the Commission (now the State Department of Health) “to formulate and promulgate, amend and repeal codes and rules and regulations controlling and prohibiting air pollution throughout the State or in such territorities of the State as shall be affected thereby,” provided a public hearing is first held. This broad power is, of course, controlled by the definition of “air pollution” contained in N. J. S. A. 26:2C-2 and section 1.10 in chapter I of the Code.

Owens-Corning makes no claim that chapter VI was not properly adopted by the Commission after a public hearing. Its contention is that neither the Code nor the statute is in the slightest degree informative as to what a manufacturer may or may not emit into the atmosphere, and in what quantities. We find a sufficient guide and standard provided in the definition section of the act and Code. Additionally, a defendant has the benefit of adequate procedural safeguards. It has been said that standards are not as important as are procedural safeguards and outside checks upon discretionary power. 1 Davis, Administrative Law, §§ 2.08-2.15 (1958), cited with approval in Gilman v. Newark, 73 N. J. Super, 562, 596 (Law Div. 1962).

Such procedural safeguards are not lacking here. Not only are the courts ultimately available to an aggrieved defendant in the event of procedural unfairness — N. J. S. A. 26:2C-20 provides for review of the validity of any code, rule or regulation promulgated by the Commission by a proceeding in lieu of prerogative writs — but there are additional procedural safeguards provided by the act itself.

In the first place, where a code does not set specific limits for emissions to the atmosphere, as here, no order to cease such emissions may be issued until a preliminary hearing has been held. This provision was written into N. J. S. A. 26:2C-14 by L. 1962, c. 215, § 6. The obvious legislative goal was flexibility in an area where complete cataloging of all possible substances and their harmful densities and effects would be impossible. Instead, the Department was authorized to hold a preliminary hearing for the purpose of determining whether a defendant had violated the Code. The inquiry at the preliminary hearing is entirely factual. Its purpose is to determine whether defendant has caused the presence in the atmosphere of substances in quantities injurious to health or property, or in quantities which unreasonably interfere with the comfortable enjoyment of life and property. If it is determined, as it was in this ease, that defendant has caused one or both of these kinds of air pollution, the Department is authorized to order that the violation cease.

L. 1962, c. 215, § 6, which substantially tightened the enforcement machinery, supplemented the original act of 1954 by providing, in section 9 (now N. J. S. A. 26:2C-14.1), as heretofore noted, that any person aggrieved by an order of the Department under the act may, upon application made within 15 days after notice therof, be entitled to a hearing before the Department. The Department must, within 30 days after such hearing, issue an appropriate order modifying, approving or disapproving its prior order.

Owens-Corning had the full benefit of not only a preliminary hearing but a hearing on its grievances as well. And presently it is seeking review of the original order and amended order, as permitted by N. J. S. A. 26:2C-20 and R. R. 4:88-8.

Defendant asserts that although it has been recognized in New Jersey that there is no rigid principle requiring an administrative agency to lay down rules and standards spelling out every grant of authority received, it has nonetheless been recognized that there are certain instances where rules must be promulgated prior to a finding of violation, citing Boller Beverages, Inc. v. Davis, 38 N. J. 138 (1962). That case is clearly distinguishable on its facts. The Director of the Division of Alcoholic Beverages was authorized by statute to enact rules and regulations necessary to regulate and control the manufacture, sale and distribution of alcoholic beverages. Although he had not adopted a rule pertaining to containers, he specially ruled, without a hearing, that the sale of a brand of corn whiskey was illegal in New Jersey when packaged in Mason or fruit jars. The court held that the Director’s ruling amounted to ad hoc legislation: no opportunity for a hearing had been afforded Boiler Beverages whose packaging was determined to be illegal. Nor had the Director referred to any specific provision of the Alcoholic Beverage Control Act, N. J. S. A. 33:1-1 et seq., or to any rule or regulation promulgated under his rule-making power in advance of the ruling under attack, prohibiting the particular type of packaging used by Boiler Beverages. Such is not the case here. Owens-Corning’s alleged violation of the Code was fully exposed and explored in the preliminary hearing and, after it had claimed to have been aggrieved, at the second hearing. Only then did the amended order issue.

There was, therefore, no lack of a hearing in this case and, more importantly, no ad hoc legislation involved. A factual determination, made after full hearing, that Owens-Corning was guilty of polluting the air, cannot be characterized as ad hoc.

We find nothing in R. H. Macy & Co. v. Director of the Division of Taxation, 77 N. J. Super. 155, 180 (App. Div. 1962), affirmed 41 N. J. 3 (1963), cited by defendant, to support its attack upon the Code or the act.

There is a plain answer to defendant’s claim that the Code lacked specificity in that it failed to inform it with particularity as to the nature of its offending activity. The activity was and remains air pollution. In view of the extended conferences and correspondence detailed in the record, the company’s efforts to achieve at least a degree of control over the emissions from its plant into the atmosphere, and finally the Briley letter of June 21, 1966, defendant cannot seriously contend that it was not sufficiently informed for more than half a dozen years of the conduct proscribed by the Code.

We therefore conclude that Owens-Corning’s attack upon the -validity of section 2.1 of chapter VI of the Code is without merit.

V

Defendant next contends that it was denied due process by the entry of the order and amended order from which it appeals. This claim is based on the “secret report” doctrine of Mazza v. Cavicchia, 15 N. J. 498 (1954), which held that when a Division of Alcoholic Beverage Control hearing officer transmits a report of the hearing held before him to the Director, who then issues an order based thereon, due process is denied if that report is not first submitted to the defendant licensee so that he may refute it before the Director acts. Owens-Corning’s claim here is that just such a secret report was transmitted to the State Commissioner of Health, and that its constitutional rights were thereby violated.

There are at least two answers which defeat this claim. The first is that the point was raised and decided against defendant in its motion for a remand for a de novo hearing. That motion (M-10-67) was accompanied by extensive briefs filed before a Part of this court which sat in the late summer of 1967, and it was denied. Owens-Corning’s right to reargue the question was not reserved. We therefore consider that the company is concluded by our determination.

The second and substantive answer is that Mazza does not .apply because of the very nature of the hearings held in the instant ease. In Mazza, as already indicated, there was a hearing, the hearing officer filed his report, and the Director then issued his order without affording the licensee an opportunity to inspect the report and file exceptions. In the present case there was a preliminary hearing by reason of the provisions of the third paragraph of N. J. S. A. 26 :2C-14. After taking extensive testimony and analyzing the record, the preliminary hearing officer transmitted his report to the State Commissioner of Health, who then rendered his findings, conclusions and order. What followed distinguishes this case from Mazza, for defendant requested a hearing as a person aggrieved, under N. J. S. A. 26 :2C-14.1. This new hearing was plenary in nature. It was not an appeal, as defendant incorrectly characterizes it. Indeed, the statute does not designate this hearing as an “appeal,” and the nature of the hearing belies the characterization.

The hearing called for by N. J. S. A. 26:2C-14.1 does two things: (1) It permits a defendant to set out in just what manner he considers himself aggrieved. In other words, he excepts to the preliminary report. This is precisely what Owens-Corning did in response to the Commissioner’s invitation that the company state the particulars of its claimed grievance. (2) It affords full opportunity for a defendant to prove its grievances and to meet the findings and conclusions of the original report.

Before issuing the amended order the Commissioner, as recited in the body of that order, gave due consideration to the transcript of the second hearing, the findings and recommendations of the hearing officer, and also the brief submitted on defendant’s behalf. The amended order followed the original order, except for giving Owens-Corning three months more to comply and deleting the stack height provision that had been included among the interim directives of the original order.

It is entirely clear that defendant’s views were made known to the Commissioner and considered by him before entry of the amended order, and this after a plenary grievance hearing. We find no denial of due process or fundamental unfairness in this case.

As for defendant’s claim that it was improper for the same hearing officer to preside over the preliminary and second hearings, that contention is based on the invalid argument that the later hearing was in the nature of an appeal from the original order. We find the claim baseless since the second hearing was not an appeal as such.

YI

Defendant argues that both the original and the amended orders are void for failure to state the “items which are in violation,” as required by N. J. S. A. 26 :2C-14. This contention fails to recognize, however, that the quoted language refers to an order of the ex parte type issued under the second paragraph of that section — one issued without the holding of a preliminary hearing. The original order was issued under the third paragraph of N. J. S. A. 26 :2C-14, and not the second. The terms of the third paragraph do not require a statement of “items which are in violation.” Nor does N. J. S. A. 26 :2C-14.1, under which the amended order issued.

YII

Owens-Corning next claims that the Commissioner does not have the authority to prescribe interim measures to alleviate the violation. Interim measures were implicitly approved in Shahmoon Industries, Inc. v. Department of Health, 93 N. J. Super. 272, 284 (App. Div. 1966), certification denied 49 N. J. 358 (1967).

Defendant’s position is lacking in logic. Had the Commissioner’s final order merely directed that violation of chapter YI, section 2.1 of the Code cease on or before April 1, 1968, defendant undoubtedly would have complained that the order was too vague. (Compare its claim under VIII below). It now claims, in effect, that the order is too specific because it directs what measures should be taken to alleviate the pollution condition. It would appear to us that the ordering of interim measures is to defendant’s advantage, particularly in view of the fact that the Commissioner could have ordered the company to close down its plant completely in order to bring the air pollution to an end. See N. J. Dept. of Health v. Roselle, above, 34 N. J., at page 348.

What is entirely lacking here is a showing as to just how defendant was prejudiced by the order in question.

VIII

It is next asserted that the orders under review are too vague for enforcement because they fail to state what Owens-Corning did that was in violation of chapter VI, section 2.1 of the Code, citing the Roselle case in support of the argument. That case is distinguishable. See Shahmoon Industries, Inc. v. Department of Health, above, at pages 284-285. The court in Roselle held that an injunctive order to “cease violating” the Code which, in turn, directed that “No person shall cause, suffer, allow or permit open burning of refuse,” was too broad. The order was deemed insufficiently informative in the context of repeated fires on appellant’s garbage dumps of apparently spontaneous or otherwise mysterious origin. Here, as was said in Shahmoon, Owens-Corning certainly knows the nature and origin of its violation of the Code; otherwise its efforts to alleviate the air pollution condition at its Barrington plant would be without purpose and meaningless.

IX

We have also considered defendant’s argument that the orders were improper in that they attempted to regulate odors, since this is not a subject properly within the scope of the enabling legislation or the Code, both of which speak of “substances.” (As noted in footnote 1, above, the act, as amended by L. 1967, c. 106, § 5, now speaks of “air contaminants” instead of “substances.”) Defendant relies upon Verona v. Shalit, 92 N. J. Super. 65 (1966), a County Court case where it was said that the Code “does not contain any prohibition against odors.” On appeal, however, the Appellate Division expressly refrained from dealing with this issue, resting its affirmance on other grounds. See Verona v. Shalit, 96 N. J. Super. 20, 25 (1967). In any event, we consider defendant’s conclusion a mistaken one.

In the first place, the County Court decision itself refutes defendant’s claim when it says that the “substances” prohibited from being emitted by the Code “may include smoke, flying ash, air coniaminanis, consisting of ‘coarse and fine solid particles, liquid particles, vapors or gases which are discharged into the outdoor atmosphere,’” (at page 68; italics ours).

An odor is a substance of gaseous character or a liquid of high vaporizing quality. The odor of perfume, for example, is an emission of vapor into the air, caused by evaporation of the liquid vehicle carrying the odoriferous element. The familiar odor of rotten eggs is the gas hydrogen sulphide. The odor of formaldehyde or acetone is the air-borne vapor of these chemicals. All are clearly “substances” within the definition of the word. Thus, in prohibiting emission of noxious substances the obvious legislative purpose was to include odors. Defendant would hardly contend that the Legislature did not intend to prohibit the release into the air of high concentrations of the odor of chlorine or hydrogen cyanide, both of them deadly gases. Furthermore, odors may amount to a nuisance if produced in unreasonable quantities, and their production could therefore be proscribed under the act.

Under the new definition of “air pollution” contained in the 1967 amendment, an odor is clearly an “air contaminant.” By this amendment the Legislature made explicit what it meant by “substances.”

X

Defendant next argues that the record does not support the Commissioner’s conclusion that there was a violation of the Code. Specifically, it asserts that the Department failed to prove any interference with the comfortable enjoyment of life and property, and, assuming interference was shown, it was not proved to be unreasonable under N. J. S. A. 26 :2C-2. In essence, this amounts to a claim that the administrative determination was not based upon sufficient credible evidence.

In proceedings before an administrative agency, it is only necessary to establish the truth of the charges by a preponderance of the believable evidence, and on appeal the factual determinations of the agency are generally sustained “if they are supported by substantial evidence on the whole record.” Atkinson v. Parsekian, 37 N. J. 143, 149 (1962). Our review of the record, summarized earlier in this opinion, convinces us that this test has been met.

XI

It is claimed that the hearing officer improperly excluded defendant’s offer of proof that other sources — specifically, the exhaust from motor vehicles — were responsible for the complaints registered by the Department’s witnesses. The hearing officer found the proffered evidence “too remote” to be relevant on the issue of defendant’s pollution of the atmosphere. We cannot say this was error, even under rules of evidence which need not be strictly enforced in a Department hearing held under the Air Pollution Control Act. See N. J. S. A. 26:2C-16. As we said in D’Amico v. Blanck, 85 N. J. Super 297, 303 (1964), certification denied 43 N. J. 448 (1964), “the choice of accepting or rejecting the testimony of witnesses rests with the administrative agency, and where such choice is reasonably made, it is conclusive on appeal.” Absent a showing that the exclusion of the proffered evidence was inconsistent with substantial justice, we will not disturb the administrative determination. R. R. 1:5-3 (b). Defendant has not made such a showing.

XII

Defendant’s final argument is that the doctrine of “unavoidable necessity” dictates that the Commissioner’s order may not be sustained.

As the State correctly points out, the applicability of the doctrine turns upon the reasonableness of the statute or regulation under review and of the proscription imposed. Assuredly, it is not unreasonable for the State, in the interest of the public health and welfare, to seek to control air pollution. Even if this means the shutting down of an operation harmful to health or unreasonably interfering with life or property, the statute must prevail. But no such drastic measure was called for in this case.

Upon analysis, defendant’s argument based on “unavoidable necessity” is that since no known equipment exists which could solve the situation, no unreasonable interference with the comfortable enjoyment of life or property can be asserted against it. The record does not support that claim. The best that can be said is that no method yet found and used by Owens-Corning is totally effective. However, steps that will substantially improve the air pollution condition are available. The proofs are that when Owens-Corning used certain equipment on its U-l line, there was a diminution of pollution. The company, as shown by the Briley letter of June 21, 1966, is not entirely satisfied with the result achieved on the U-l line and does not intend to install similar equipment on its other lines. It represents that it is presently engaged in a crash research program to develop major changes in its basic manufacturing processes. Two very promising changes have already been developed and are being tested.

The Commissioner has ordered that certain steps be taken which he considers will curb the too-noxious emissions from the Barrington plant. Defendant must, for the moment, comply with the order. If the steps prescribed do not wholly accomplish the desired result, other or supplemental steps may be taken. In short, the situation is subject to the continuing jurisdiction of the Department. We hold that the doctrine of unavoidable necessity is not available to defendant and is not viable in the context of the Air Pollution Code.

The amended order is accordingly affirmed in all respects.

       Effective June 15, 1967 this section of the Code was amended by L. 1967, c. 106, § 5 to read:
      “ ‘Air pollution’ as used in this act shall mean the presence in the outdoor atmosphere of one or more air contaminants in such quantities and duration as are, or tend to be, injurious to human health or welfare, animal or plant life or property, or would unreasonably interfere with the enjoyment of life’ or property throughout the State and in such territories of the. State as shall be affected thereby and excludes all aspects of employer-employee relationship as to health and safety hazards.”