Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
The Law Division invalidated a variance from the zoning ordinance of the Town of Westfield. It had been recommended by the board of adjustment and approved by the township committee.
The original section of the zoning ordinance involved permitted the construction or use of a building in a residence "A" zone for the office "of a professional person, such as a
doctor, dentist, lawyer, engineer, artist, photographer, teacher or musician, provided such office or studio is accessory to and part of a residence * * *."
Appellant, William H. Mair, who is described in the pretrial order as "having a degree of Doctor of Medical Technology," purchased a one-family residence in the "A" zone for the purpose of establishing his laboratory and office. His work is said to involve technical laboratory work and tests, as well as application of "physiotherapy procedures and other specialized treatment to patients referred by physicians." The activity was and is carried on under the name Clinipath Laboratories. The premises had been owned and lived in for 25 years by a Mrs. Donohue. After the accomplishment of remodeling, she was to reside there as a tenant. Mair and his wife, who took title as tenants by the entirety, intended to continue living elsewhere.
The Mairs applied for and were granted a permit to renovate and remodel the building so as to adapt it to the desired purposes. The work was performed, the exterior of the house was improved in appearance and a portion of the lot was paved so as to provide off street parking.
About seven months later a complaint was filed in the municipal court against William and Thelma Mair, charging a violation of the zoning ordinance because Mair was not residing there. The magistrate interpreted the language to mean that a professional person could maintain an office in the "A" zone as an accessory use only if the premises were used as his residence also. Accordingly a finding of guilt was made.
Successive appeals were heard in the County Court and by Part B of the Appellate Division, and the conviction was affirmed. State v. Mair , 39 N.J. Super. 18 (App. Div. Feb. 10, 1956). We accept the conclusion that under the ordinance residence in the building is a prerequisite to the maintenance of an office therein.
On July 1, 1954, after the conviction and affirmance in the County Court but prior to the final determination on appeal, Mair applied to the board of adjustment for a variance in
order to permit the second floor of the premises to be occupied by a tenant rather than by himself and his wife. The town council, obviously being desirous of eliminating any possible doubt about residence being a requirement when a professional office is opened in the "A" zone, amended the ordinance to read that such office is permissible "providing the person using the office resides in the building * * *." The amendment became effective July 12, 1954.
Three days later, on July 15, a hearing was held by the board of adjustment on the variance request. It is inconceivable that the board was unaware that the governing body had just officially emphasized the mandate which the applicant was seeking to avoid. In any event a variance was recommended to the town council, presumably under N.J.S.A. 40:55-39(d) (which authorizes such action "in particular ...