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State v. Mair

Decided: February 10, 1956.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WILLIAM H. MAIR AND THELMA C. MAIR, DEFENDANTS-APPELLANTS



Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

Defendants were convicted in the Municipal Court of Westfield of having violated the local zoning ordinance which permits certain professional offices in a residence "A" zone, provided such office is accessory to and part of a residence. On appeal to the County Court the conviction was sustained. Defendants now appeal from that judgment.

Defendants are the owners of 330 Lenox Avenue, Westfield, N.J., located in a Residence "A" zone and consisting of a one-family house and lot. Immediately after purchasing the property from a Mrs. Donahue, they applied for and obtained a building permit on August 28, 1953 permitting Dr. Mair to make certain alterations which would convert the first floor of the premises to a clinical laboratory. The alterations resulted in the following arrangement: an office, treatment rooms and laboratory on the first floor; an apartment consisting of a living room, bedroom, bath and kitchen on the second floor, and an attic and basement. Dr. Mair uses the first floor; the second floor apartment, attic and half the basement are rented to Mrs. Donahue, the former owner, for residential purposes. On March 22, 1954 a complaint was filed against defendants for violating General Ordinance No. 630, the zoning ordinance of the Town of Westfield, adopted in 1946. That ordinance established Residence "A" and "B" zones, a Business zone and a Commercial and Industrial zone. Article 6, relating to the Residence "A" zone, provides in part:

"Section 1. Uses -- In a residence 'A' zone no building or structure shall be used and no building or structure shall be built, altered or erected to be used for any purpose other than the following * * *

a. A single family dwelling and accessory buildings.

d. The office or studio of a professional person or artist, such as a doctor, dentist, lawyer, architect, engineer, artist, photographer,

teacher or musician, provided such office or studio is accessory to and part of a residence * * *."

The ordinance defines "accessory use" as "A use customarily incidental to the principal use of a building." "Single-family dwelling" is defined as "A detached house designed for the use of a single household, including a single person or 2 or more persons living as a family and wherein not more than 4 persons are sheltered or fed for profit." The municipal court convicted defendants of violating section 1(d) of Article 6 and imposed a fine of $100. The court found that the clinical laboratory on the first floor was not accessory to and part of a residence, as prescribed by the ordinance.

As noted, the County Court affirmed. The municipality waived payment of the fine and the County Court suspended sentence.

It may be mentioned, incidentally, that following the conviction in the municipal court the governing body of Westfield amended section 1(d) to read:

"The office or studio of a professional person such as a doctor * * * in a single-family house, providing the person using the office resides in the building, and providing further that such office or studio is accessory to and part of a residence * * *."

Defendants contend that the ordinance should be strictly construed, especially since it is penal in nature. They argue that the language of Article 6, section 1, of the ordinance was adopted to prevent a professional person who owned property in a Residence "A" zone from constructing an additional structure on the premises separate and apart from that of the residence, to house a professional office. If the professional office is connected with a structure used as a residence by anyone, the ordinance is not violated, because it was never intended by the language of the section in question to require that the professional person ...


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