REGENCY GARDENS NURSING HOMES v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF WAYNE
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2283-13T1
REGENCY GARDENS NURSING
HOMES,
Plaintiff-Appellant,
v.
ZONING BOARD OF ADJUSTMENT
OF THE TOWNSHIP OF WAYNE and
HEALTH RESOURCES OF NEW JERSEY,
L.L.C.,
Defendant-Respondents.
___________________________________
Argued November 13, 2014 – Decided August 27, 2015
Before Judges Fuentes, Kennedy and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Docket No. L-
2635-13 and L-4505-12.
John F. Casey argued the cause for appellant
(Wolff & Samson, P.C., attorneys; Mr. Casey,
on the brief; Elisa M. Pagano, on the
brief).
Allison Britt-Anderson argued the cause for
respondent Zoning Board of Adjustment of The
Township of Wayne (Hanse Anderson, L.L.P.,
attorneys; Ms. Britt- Anderson, on the
brief; Patrick C. Anderson, on the brief).
Jerome A. Vogel argued the cause for
respondent Health Resources of N.J., L.L.C.
(Jeffer, Hopkinson & Vogel, attorneys; Mr.
Vogel, on the brief; David H. Altman, on the
brief).
PER CURIAM
Defendant Health Resources, L.L.C. (Health) obtained use
and bulk variances and site plan approval from defendant Wayne
Township Zoning Board (Board) to build an inpatient
rehabilitation facility in Wayne Township. Plaintiff, Regency
Nursing Homes (Regency), filed two complaints, later
consolidated, in lieu of prerogative writs seeking to reverse
the Board's decision. On December 10, 2013, the trial court
dismissed plaintiff's amended complaint with prejudice.
Plaintiff appeals, contending the trial court erred by
affirming the Board's decision to grant the use variance and a
bulk variance that allegedly failed to allow Health to construct
the required number of parking spaces at the proposed site.
After reviewing the record, the briefs, and the applicable legal
principles, we affirm.
I
Health seeks to build a three-story, 92,000 square-foot,
short-term inpatient rehabilitation facility in the business
zone of Wayne Township. Because this zone does not permit this
use, in March 2012 Health filed an application with the Board
for a use variance. Health also sought bulk variances and site
2 A-2283-13T1
plan approval in its application, but the application for the
use variance was bifurcated and decided before the Board
considered the other relief Health sought.
The Board held hearings over the course of three days on
the application for the use variance. We briefly summarize the
material evidence. Health's owner, William G. Burris, Jr.,
testified that he has been in the nursing home business for
thirty years but, due to changes in the nursing home industry,
decided to build a post-acute or subacute rehabilitation
facility in Wayne Township. The proposed 124-bed facility would
provide short-term, inpatient rehabilitation services to
patients recently discharged from hospitals; Burris anticipates
that most of those admitted would be orthopedic patients. He
stated that hospitals have been referring patients to subacute
facilities for rehabilitation for "a long time," and need
facilities of the kind Burris intends to build so that patients
can be properly rehabilitated and thus avoid readmission to a
hospital.
The project plan includes a 15,000 square foot area for
physical therapy. The centerpiece of the rehabilitation area is
a pool in which treadmills can be easily submerged for a
patient's use. Burris indicated that it was his understanding
that using treadmills in the water enables a patient to move an
3 A-2283-13T1
afflicted area of the body without feeling pain. Burris
testified that he chose the site because, among other things, it
borders William Paterson University and he wants to make the
facility "a teaching type facility." He has had meetings with
the university about making the facility a "teaching arm for
their kinesiology department."
The average stay in the facility is expected to be between
thirteen to nineteen days. The facility will not be designed
for and is not intended for long term care, such as a nursing
home. He also testified the facility would be for profit, but
would be Medicare and Medicaid certified.
Health's engineer and site-plan designer, Gordon Meth,
testified that there would be additional traffic generated from
the facility, but the quantity of traffic would be substantially
less than that which would be produced from a permitted use.
Meth also noted that the proposed project adhered to the bulk
requirements of the business zone, with the exception of the
floor area ratio and building height requirements.
Specifically, the floor area ratio would be .67 when the
maximum permitted is .15. However, Meth pointed out that a
majority of the facility's 131 parking spaces would be in an
underground garage, making the facility less oversized than it
otherwise would be for the site. Although the proposed height
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of the facility is 39.4 feet, Meth noted that the height is only
4.4 feet above the maximum permitted height of 35 feet.1
Further, the proposed facility not only borders William Paterson
University but also St. Joseph's Hospital, both of which have
taller structures on their respective properties.
Although Burris made it clear he was not going to operate a
long-term care facility, Regency's expert health care planner,
Martin Parker, testified that the proposed facility was a
nursing home. He reasoned the facility was a nursing home
because nursing homes can also provide subacute care. He did
not address whether an entity that provides only subacute
services over a period of less than three weeks can be regarded
as a nursing home.
Parked contended that there was no need for the proposed
facility because there are eight nursing homes in Wayne Township
and the number of patients in these and in nursing homes in
general has declined over the last several years.2 He also
testified that the other nursing homes in the township can
1
During the hearing on the application for the bulk variances
and site plan approval, Health's attorney stipulated that the
building height would be 38.4 feet.
2
Parker indicated the decline in the use of nursing homes is due
to the fact that senior citizens are healthier than in previous
years and many resort to using alternative living arrangements,
such as assisted living, before resorting to moving into a
nursing home.
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provide subacute care, including rehabilitation, and that in the
township alone there are 300 subacute care beds.
Parker did not, however, provide the utilization rates of
those 300 beds. In fact there was no evidence the need for
subacute services has declined; moreover, Parker conceded the
need for subacute care is not age-related. Further, there is no
evidence any of the other nursing homes offer the specific kind
of hydrotherapeutic rehabilitation Burris seeks to provide in
his proposed facility.
At the conclusion of the hearing, the Board voted in favor
of granting the use variance. In its resolution, the Board
stated in relevant part:
The Board understood that other nursing
homes in the Township provide some of the
services that will be offered by the
proposed facilities. Nevertheless, the
Board found that the specific services being
provided, in the manner they are being
provided, . . . were not a nursing home, but
a distinctly different use than what exists
in the other eight (8) facilities in the
Township . . . . Accordingly, the use was
determined to be inherently beneficial,
which satisfied the positive criteria test
for the granting of the d(1) variance.
Therefore, the applicant addressed the Sica
balancing test. . . . The only detrimental
effect found was traffic flow and the
Applicant stated it would restrict left
turns out of the site to address concerns
raised by the public. Further, the amount
of traffic generated by this use is less
than what would be generated by a permitted
use.
6 A-2283-13T1
. . . .
In reviewing the application plans and
testimony, the Board concludes that the
applicant has met both the positive and
negative criteria that are required for the
Board to grant the use variance relief
specifically being sought. The Board notes
that the proposed use is inherently
beneficial, which itself satisfies the
positive criteria test.
Turning to the negative criteria, the Board
concludes that the application as submitted
does not negatively impact public good, the
zone plan or the zone scheme of the area.
The Applicant showed that it addressed a
potential land-use-related detrimental
effect (related to traffic movements) and
that the traffic amount would be less than
what could be generated by a permitted use.
Further, the Applicant showed that the
project advances goals set forth in the
Master Plan. The Board concludes there are
no substantial detriments and that the cited
benefits outweigh the detriments.
The Board granted the use variance subject to, among other
things, any site plan approved pursuant to
N.J.S.A. 40:55D-49
and 52, and further directed the applicant to comply with all
township ordinances and federal, state, and county
"requirements."
One of Regency's contentions is that the hearing on
Health's request for a use variance should not have been
bifurcated from its application for bulk variances and site plan
approval. Regency argued that the evidence adduced at the
7 A-2283-13T1
hearing to consider Health's application for bulk variances and
site plan approval may have affected the Board's decision to
grant a use variance. Thus, we briefly summarize the pertinent
evidence adduced at the second hearing.
Health's site engineer, Bryan Vandergheynst, testified that
the project would be in compliance with all business zone
requirements with the exception of the proposed floor area ratio
and the height of the building. He also noted that the new
building would substantially reduce the rate of runoff that
currently exists, and would eliminate steep man-made slopes and
protect natural ones.
Health's expert planner, Christine Cofone, noted that the
surrounding land uses were commercial and intensive, and that
the university has multiple buildings on its property that are
as tall as or taller than the proposed building. She testified
the proposed facility would be consistent with the "character"
of the area and would not be a "negative impact."
Further, although the floor area ratio would be .67, a
portion of the structure would be underground, making the actual
floor area ratio .48. But whether the floor area ratio were .67
or .48, she opined the size of the proposed structure would not
cause a substantial detriment to the public good or to the zone
plan because the storm water runoff would be less than what it
8 A-2283-13T1
is now and the traffic would be less than what a permitted use
would generate. In addition, the impervious coverage would be
reduced if the proposed structure were built.
Regency's professional planner, engineer Michael Kauker,
conceded that the proposed use would be inherently beneficial.
However, he opined the floor area ratio would cause a
substantial detriment to the zone plan because it would be over
four-and-a-half times the .15 permitted in the business zone.
He acknowledged the university's buildings and the hospital are
larger, but pointed out those buildings are on proportionately
larger sites. Further, there are smaller buildings on other
adjacent lots.
The zoning board approved Health's application for bulk
variances and its site plan. In its findings Board noted, in
pertinent part, that
[i]n reviewing the application plans and
testimony, the Board concludes that the
applicant has met both the positive and the
negative criteria that are required in order
for the Board to grant the use variance
relief specifically being sought. The Board
notes that the applicant made a compelling
case: the use continues to be inherently
beneficial; the detriment of the massiveness
of the structure does not outweigh the
benefit because the actual use is less
intense than an otherwise permitted use; in
the context of the neighborhood (e.g. the
hospital and William Paterson University),
this is [a] unique situation in which the
larger floor area can be accommodated;
9 A-2283-13T1
placing the parking underneath the building
enables attention to the environmental
considerations of the subject property;
given the proximity of the subject property
to the hospital and the university the site
is particularly suited to the use; goals in
the Master Plan are furthered. Accordingly,
the Board concludes that the application as
submitted does not negatively impact the
public good, the zone plan nor the zone
scheme of the area.
With respect to the parking issue, the
parking standards in the ordinance do not
apply because the Board found that this
proposed use is not the same as a "nursing
home." This finding was also the crux of
the d(1) variance approved [at the previous
hearing].
. . . .
The Board notes that the man-made slopes
will be removed, runoff will be reduced and
impervious coverage will be reduced.
Further, the Board is satisfied that the
subject property in question will be
stabilized and restored to the extent
possible consistent with the goals and
objectives of the Environmental Protection
ordinance.
Regency filed complaints in lieu of prerogative writs
following the adoption of each resolution; both complaints were
eventually consolidated. Following a hearing, the trial court
affirmed the Board's decision to approve the variances and site
plan Health sought.
In this appeal, Regency contends, among other things, that
the Board: (1) failed to consider whether there was a need for
10 A-2283-13T1
another nursing home before finding that the use was inherently
beneficial and thus its approval of the use variance was
arbitrary, capricious and unreasonable; (2) improperly granted
the use variance under the mistaken belief the proposed use was
not a nursing home; (3) failed to make adequate findings that
the proposed use would not substantially impair the intent and
purpose of the zone plan and zoning ordinance; (4) improperly
bifurcated from the application for a use variance from the
other variances Health sought; and (5) granted a bulk variance
that allowed only half of the parking spaces required for this
use.
II
We apply the same standard the Law Division must apply in
reviewing a decision of the zoning board. Bressman v. Gash,
131 N.J. 517, 529 (1993); D. Lobi Enters., Inc. v. Planning/Zoning
Bd. of Sea Bright,
408 N.J. Super. 345, 360 (App. Div. 2009).
Decisions of zoning boards constitute quasi-judicial actions of
municipal administrative agencies, Willoughby v. Planning Bd. of
Deptford,
306 N.J. Super. 266, 273 (App. Div. 1997), and they
are presumed to be valid, Cell S. of N.J., Inc. v. Zoning Bd. Of
Adj. of W. Windsor Twp.,
172 N.J. 75, 81 (2002). "[A]n
overriding principle of judicial review of variance decisions by
boards of adjustment is that, assuming an adequate basis in the
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record for a board's conclusions, deference to the judgment of
local zoning boards ordinarily is appropriate." Lang v. Zoning
Bd. of Adj. of N. Caldwell,
160 N.J. 41, 58 (1999).
The question is whether the decision of the zoning board
"'is supported by the record and is not so arbitrary,
capricious, or unreasonable as to amount to an abuse of
discretion.'" New Brunswick Cellular Tel. Co. v. Bd. of Adj. of
S. Plainfield,
160 N.J. 1, 14 (1999) (quoting Smart SMR of N.Y.,
Inc. v. Borough of Fair Lawn Bd. of Adj.,
152 N.J. 309, 327
(1988)). A court must not substitute its own judgment for that
of the board unless there is a clear abuse of that discretion.
Cell S. of N.J., supra,
172 N.J. at 81-82. The burden is on the
challenging party to show that the board's decision was
arbitrary, capricious, or unreasonable. Id. at 81; Smart SMR of
N.Y., supra,
152 N.J. at 327. Further, "the Board 'has the
choice of accepting or rejecting the testimony of witnesses.
Where reasonably made, such choice is conclusive on appeal.'"
Kramer v. Bd. of Adjust.,
45 N.J. 268, 288 (1965) (quoting
Reinauer Realty Corp. v. Nucera,
59 N.J. Super. 189, 201 (App.
Div.) certif. denied
32 N.J. 347 (1960)).
Less deference is given to a grant of a use variance.
Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of
Adj.,
388 N.J. Super. 67, 75 (App. Div. 2006). "'[V]ariances to
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allow new nonconforming uses should be granted only sparingly
and with great caution since they tend to impair sound zoning.'"
Ibid. (quoting Burbridge v. Twp. of Mine Hill,
177 N.J. 376, 385
(1990)). To uphold a use variance, a reviewing court must find
both that the board's decision meets the statutory criteria and
is supported by adequate evidence. Ibid.
However, "[i]f a proposed use qualifies as an 'inherently
beneficial' use, the burden of proof of an applicant for a use
variance is 'significantly lessened' with respect to both the
positive and negative criteria." Salt & Light Co., Inc. v.
Willingboro Twp. Zoning Bd. Of Adj.,
423 N.J. Super. 282, 287
(App. Div. 2011), certif. denied.
210 N.J. 108 (2012) (citing
Smart SMR of N.Y., supra,
152 N.J. at 323). An inherently
beneficial use is presumed to satisfy the positive criteria, and
it does not have to satisfy an "enhanced quality of proof" for
the negative criteria, as set forth in Medici v. BPR Co.,
107 N.J. 1, 21-24 (1987). Ibid. (citing Smart SMR of N.Y., supra,
152 N.J. at 323). An inherently beneficial use is defined in
N.J.S.A. 40:55D-4 as a use that is
universally considered of value to the
community because it fundamentally serves
the public good and promotes the general
welfare. Such a use includes, but is not
limited to, a hospital, school, child care
center, group home, or a wind, solar or
photovoltaic energy facility or structure.
13 A-2283-13T1
But even if a use is found to be inherently beneficial, the
board must still balance the benefits and burdens of the
requested variance and use the following steps as a guide: (1)
identify the public interest at stake; (2) identify the
"detrimental effect that will ensue from the grant of the
variance;" (3) consider whether the detrimental effect can be
reduced by imposing reasonable conditions on the use; and (4)
"weigh the positive and negative criteria and determine whether,
on balance, the grant of the variance would cause a substantial
detriment to the public good." Sica v. Bd. of Adj. of Wall,
127 N.J. 152, 165-66 (1992); Bd. of Educ. of Clifton v. Zoning Bd.
of Adj. of Clifton,
409 N.J. Super. 389, 441-42 (App. Div. 2009)
(quoting Sica,
127 N.J. at 165-66). In addition,
N.J.S.A.
40:55D-70 requires that an applicant must show that the variance
will not substantially impair the intent and the purpose of the
zone plan and zoning ordinance.
Here, we initially note that there was ample evidence to
support the Board's conclusion that the proposed use is not a
nursing home or a long term care facility. Health intends to
provide rehabilitation services to patients whose admission will
not last longer than two to three weeks. Second, we have no
quarrel with the Board's finding that the proposed use is
inherently beneficial – a conclusion shared by Regency's own
14 A-2283-13T1
professional planner. There is no question this use is of a
kind that is considered to be of value to the community because
it fundamentally serves the public good and promotes the general
welfare. See
N.J.S.A. 40:55D-4. Similar to a hospital, Health
seeks to provide care and treatment to patients, and it is not
disputed this facility will be regulated by the New Jersey
Department of Health. See
N.J.S.A. 26:2H-1.
Further, based upon the proofs submitted there is support
for the Board's finding that the use variance would not cause a
substantial detriment to the public good or substantially impair
the intent and purpose of the zone plan. The one detriment
identified during the use variance hearing – that there will be
an increase in traffic – can hardly be characterized as
substantial when the traffic will be less than that caused by a
permitted use. Even if the application had not been bifurcated
and the evidence concerning the floor area ratio admitted during
the second hearing had been considered during the first hearing,
it is clear from the Board's findings in the second resolution
that the use variance would have been granted.
We infer from its findings in the second resolution that
the Board credited the testimony of Health's witnesses. In that
resolution, the Board noted that any detriment attributable to
the proposed floor area ratio is not outweighed by the benefits
15 A-2283-13T1
that would be realized from permitting the proposed use.
Specifically, it found that the proposed use would be "less
intense" than a permitted one and that the floor area ratio will
be reduced by placing part of the parking garage underground.
The Board also noted that the new structure would result in less
run off and would preserve the natural slopes. Its conclusion
that the bulk variances and site plan approval would not
"negatively impact the public good, the zone plan nor the zone
scheme of the area" are supported by the proofs submitted.
After carefully considering the record and the briefs, we
conclude Regency's remaining arguments are without sufficient
merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
16 A-2283-13T1
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