Conford, Foley and Leonard. The opinion of the court was delivered by Conford, S.j.a.d. Foley, J.A.D. (dissenting).
This is an appeal from a judgment of the Law Division setting aside a determination by the Board of Adjustment of Fair Lawn: (a) construing the "home occupation" provision of the municipal zoning ordinance to prohibit plaintiff's proposed use, and (b) refusing an alternative application for a recommendation to the mayor and council for a variance allowing the use. The Law Division held the action of the board of adjustment unjustified in both respects. We disagree and reverse.
Dr. Mahler, the plaintiff, is a young dentist who has resided with his family and carried on a rapidly growing practice in the premises in question on Fair Lawn Avenue in Fair Lawn since 1956. This is an R-1-3 Zone, primarily restricted to one-family residences on 65' X 100' minimum lots. The zone permits home occupations in the following language:
"Home Occupation: The professional office of a physician, surgeon, dentist, lawyer, artist, photographer, real estate or insurance agent or broker. Home occupation such as millinery, dressmaking or hairdressing, provided there is no display of goods visible from the street. In all instances the occupation shall be carried on only by a person within the dwelling or apartment used by him as his private residence and the space given over to said occupation shall not equal more than one-half of the first floor area of the building."
In the Spring of 1965 Dr. Mahler removed his family, consisting besides himself of his wife, two children and a full-time maid, to a new home in Glen Rock. The Fair Lawn building by then no longer adequately accommodated the combined requirements of the doctor's family and practice, since enlargement of the family was contemplated and the living quarters were cramped. By then Dr. Mahler's staff consisted, in addition to himself, of two part-time practicing dentists,*fn1 two full-time nurses, a part-time nurse and a part-time
hygienist. The building is a split-level structure. It includes a basement containing a bedroom; a first level devoted to the dental suite, comprising a reception room, nurses' stations, three treatment rooms, a study, lavatory and darkroom; a second level embracing a living room, dining room and kitchen; and a third level with three bedrooms and bath. The family living quarters were in the second and third levels, and the maid occupied the basement.
As indicated above, the first phase of the application before the board of adjustment was for a declaratory ruling as to whether the continued conduct of the dental practice in the building would fall within the permissive scope of the "home occupation" provision of the ordinance. The presentation of the applicant was that he would continue occasionally to use the basement bedroom to sleep in. Although the application and the doctor's testimony indicated an intention to rent out the main living quarters to a "caretaker," counsel volunteered that the applicant would be willing to keep the living quarters unrented if the board so stipulated in approving the application.
Dr. Mahler argued that in these circumstances the premises would constitute his "residence" although his "domicile" would concededly be at the family home in Glen Rock. However, in the course of cross-examination by a board member it was made clear that the contemplated "sleep-overs" would be only, or essentially, when he had emergency night calls. Dr. Mahler's position was that a person can have multiple residences although only one domicile, and that he would in the foregoing circumstances be a resident of the premises for purposes of the home occupation provision of the zoning ordinance and might thus lawfully continue to carry on his dental practice in the place.
The board of adjustment rejected the applicant's interpretation of the ordinance. It decided that the spirit as well as
the letter of the home occupation provision contemplated a professional use which was incidental to the primary function of the premises as the home of the occupant; that Dr. Mahler's home would be with his family in Glen Rock, not at the Fair Lawn address; and that the application was "clearly an attempt by subterfuge to meet the obvious intent and purpose of the ordinance in its requirements that the professional person must reside on the premises."
The Law Division judge, citing cases involving inheritance taxation and voting requirements, ruled that residence is distinguishable from domicile and that "plaintiff may comply" with the ordinance "even though his family may live elsewhere." There was no express finding that under the postulated facts the building would constitute the plaintiff's private residence, as required by the ordinance, but such a finding is plainly inferable. We deem that conclusion erroneous. State v. Mair, 39 N.J. Super. 18 (App. Div. 1956); Keller v. Town of Westfield, 39 N.J. Super. 430 (App. Div. 1956); Jantausch v. Borough of Verona, 24 N.J. 326, 334 (1957).
Keller v. Town of Westfield, supra, is conclusive that under this kind of home occupation ordinance provision the rental of a portion of the building to others, as first proposed by this plaintiff, would invalidate the carrying on of a professional activity therein. If there is no such occupancy by others, then the "residential" use of a bedroom and den by the dentist, if indeed such occasional emergency sleep-ins as plaintiff described can be fairly deemed a true residential use of the building, would become purely incidental to the continuing primary use of the premises for professional offices. That result would violate the plain intent and purpose of a homeowner provision of this type, as thoroughly demonstrated by this court and the Supreme Court in the cases cited above.
Although the facts in the Mair and Keller cases, supra (which involved a common factual background and zoning ordinance), are somewhat different from here, the rationale of home occupation provisions as illuminated in those opinions
is a fortiori applicable in the present case. In the Keller case the Westfield ordinance permitted the use of a building in a residential zone for the offices of specified categories of professionals "providing the person using the office resides in the building * * *." The ordinance had previously, as pertinent to the issue in the Mair case, read, "* * * provided such office or studio is accessory to and part of a residence." Both decisions held that the rental of part of the premises to others while the professional occupant and his wife lived elsewhere violated the ordinance. Keller additionally held that a variance for such use was unjustified under the "special reasons" provision of the statute. (As to this, more infra.) In Mair (39 N.J. Super., at p. 22) we quoted Bassett on Zoning (1940), p. 100, in support of the exposition that in the historic development of zoning, incidental uses were customarily permitted in relation to the principal uses to which the zoning district was restricted, and that since "The doctor, dentist, lawyer, or notary had from time immemorial used his own home for his office," such and comparable occupations were generally permitted in one's own home in residential districts. We stated, in relation to the ordinance there under construction, that "its obvious purpose was to preserve the residential character of the 'A' zone and to restrict the professional use of a dwelling to the person living therein. Section 1(d) obviously was made purely for the convenience of professional people who normally operate from their homes." (at p. 23; emphasis added)
In Jantausch v. Borough of Verona, supra (primarily concerned with the question as to whether a beauty shop was a contemplated home occupation), where home occupations were allowed "incidental to the use as a residence, provided that such occupations shall be conducted solely by resident occupants of the building * * *," the Supreme Court said:
"The ordinance in limiting the 'home occupations' to 'such occupations as shall be conducted solely by resident occupants' and requiring 'no display of products shall be visible from the street' indicates an intention to ...