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Lemp v. Township of Millburn

Decided: November 23, 1942.

MARIE LEMP, PROSECUTRIX,
v.
THE TOWNSHIP OF MILLBURN ET AL., DEFENDANTS



On application for writ of certiorari.

For the prosecutrix, Harry Silverstein.

For the defendants, Reynier J. Wortendyke, Jr.

Before Justices Case, Donges and Colie.

Donges

The opinion of the court was delivered by

DONGES, J. This is an application for a writ of certiorari

to review the conviction of the prosecutrix for the violation of the zoning ordinance of the Township of Millburn.

Prosecutrix resides at 84 Locust Avenue, Millburn, which is located in a Residence "B" District, as defined by the ordinance. At her residence she conducts a custom dressmaking business in which she employs two other persons to assist her, such persons not being occupants of the premises.

The zoning ordinance prohibits the use of buildings in "B" residence districts for any business, industrial, manufacturing or commercial purpose, with certain exceptions, the pertinent one of which is as follows:

"(c) Home occupations such as custom dressmaking, custom millinery and home cooking, and not injurious to a district as a place of residence; provided that such occupation shall be conducted solely by resident occupants of the building, and that no sign, advertisement or display or products shall be visible from the street."

The violation charged against prosecutrix consisted of her employment of two non-resident assistants in the operation of the business.

The first point is that the complaint does not set forth a violation of the ordinance because it is not charged that the occupation was injurious to the district as a place of residence. However, it is obvious from a reading of the section in question that the requirement that an occupation be not injurious applies only when the occupation is otherwise within the terms of the excepting clause. The prohibition against a business conducted ...


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