BACHARACH INSTITUTE FOR REHABILITATION, INC v. GALLOWAY TOWNSHIP ZONING BOARD OF ADJUSTMENT AND HEALTH RESOURCES OF NEW JERSEY, L.L.C -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

BACHARACH INSTITUTE FOR

REHABILITATION, INC.,

Plaintiff-Appellant,

v.

GALLOWAY TOWNSHIP ZONING

BOARD OF ADJUSTMENT AND

HEALTH RESOURCES OF NEW

JERSEY, L.L.C.,

Defendants-Respondents.

______________________________________

Argued May 2, 2016 Decided May 18, 2016

Before Judges Accurso and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0286-14.

Frank L. Corrado argued the cause for appellant (Barry, Corrado & Grassi, P.C., attorneys; Mr. Corrado, on the brief).

John H. Rosenberger argued the cause for respondent Galloway Township Zoning Board of Adjustment (Rosenberger & Wolf, attorneys; Mr. Rosenberger, on the brief).

Keith A. Davis argued the cause for respondent Health Resources of New Jersey, L.L.C. (Nehmad Perillo & Davis, P.C., attorneys; Mr. Davis and Michael R. Peacock, on the brief).

PER CURIAM

In this prerogative writs action, plaintiff Bacharach Institute for Rehabilitation, Inc., appeals a December 11, 2014 order affirming defendant Galloway Township Zoning Board of Adjustment's (Board) decision to grant defendant Health Resources of New Jersey, L.L.C. (Health) its application for, among other things, minor subdivision approval, preliminary and final major site plan approval, and a conditional use variance. We affirm.

Health is the owner of a parcel of land located in the planned commercial recreation (PCR) district in Galloway Township. A portion of its parcel fronts Jimmie Leeds Road. Health sought to subdivide the parcel into two lots and put a professional office building on one lot, designated as lot 5.01, and a three-story nursing home on the other, designated as lot 5.02. Only the lot on which the professional office building is to be constructed fronts Jimmie Leeds Road. In furtherance of its plan, Health submitted an application to the Board for (1) minor subdivision approval to subdivide and create proposed lots 5.01 and 5.02; (2) preliminary and final major site plan approvals; (3) a conditional use variance for the nursing home; and (4) design waivers for lot 5.02.

Galloway Township's PCR zoning regulations state that the proximity of the PCR district to a Garden State Parkway entrance, combined with the surrounding land uses, offer a unique opportunity "to promote the development of a resort-oriented development," including hotels and conference facilities, private recreation facilities, restaurants, and other retail uses. See Galloway Twp., N.J., Code 233-26.1(A). Those uses that are permitted in a planned commercial recreation "complex" do not include nursing homes. See Code 233-26.1(B). However, permitted uses on those parcels such as lot 5.02 which do not front Jimmie Leeds Road and are not part of a planned commercial recreation complex are "those permitted uses in accordance with the NR[1] Zoning District requirements." Code 233-26.1(C)(3).

The NR Zoning District requirements are set forth in the NR Zoning District regulations ("NR regulations"). The NR regulations include a list of permitted uses, see Code 233-21(A)(1) to (10); nursing homes are not on that list. But the NR regulations include a provision for conditional uses, see Code 233-21(D), which includes nursing homes. See Code 233-21(D)(2). Another provision, section 233-21(D)(3) sets forth the conditions that must be met in order for a conditional use to become a permitted one. Section 233-21(D) states in pertinent part

D. Conditional Uses.

(1) Permitted uses. Assisted living care facilities and nursing homes.

. . .

(3) Conditions pertaining to the conditional use.

. . .

(i) Building height shall not exceed 35 feet or 2 stories, whichever is less.

Plaintiff, the operator of a nearby nursing home and rehabilitation center, objected to Health's application. During hearings before the Board on Health's application, plaintiff argued, among other things, that the nursing home was not and could not become a permitted use in the PCR district. Plaintiff further contended the nursing home could not even meet the criteria to become a conditional use under section 233-21(D), because the proposed height of the nursing home exceeded the two-and-a-half story height limitation in the NR conditional use regulation, see Code 233-21(D)(3)(i).

In addition, plaintiff argued Health was required to place a one-hundred-foot buffer on that portion of lot 5.02 that adjoins a residential district, or obtain a bulk variance under N.J.S.A. 40:55D 70(c) if Health wanted to proceed with its plan to provide only a twenty-five foot landscaped buffer.

Health contended nursing homes that do not front Jimmie Leeds Road in the PCR district can be a permitted use if the conditions set forth in section 233-21(D)(3) are met or substantially met. Health's planning expert further opined, among other things, that Health need only meet the standards in N.J.S.A. 40:55D-70(d)(3) as opposed to the more stringent standards in N.J.S.A. 40:55D-70(d)(1). The expert also testified there would be no negative impact if the height of the nursing home deviated from the two-and-a-half story or thirty-five foot height limitation in section 233-21(D)(3)(i) and was instead as high as thirty-six feet or three stories.

In a twenty-three page resolution setting forth its findings, the Board approved Health's application. Plaintiff appealed the Board's decision to the Law Division, making essentially the same arguments it had made before the Board. That is, plaintiff contended the only permitted uses allowed on lot 5.02 were those specifically listed in NR regulation section 233-21(A)(1) to (10), and that conditional uses cannot be permitted ones. Plaintiff further argued that even if a conditional use could be a permitted one, all of the conditions in section 233-21(D)(3) had to be met before a proposed use could be permitted. Otherwise, the proposed use was prohibited, making it a non-conforming use that required a use variance pursuant to N.J.S.A. 40:55D-70(d)(1) and not merely a conditional use variance pursuant to N.J.S.A. 40:55D-70(d)(3). Plaintiff also maintained Health had to erect the one-hundred-foot landscape buffer or obtain a bulk variance before it put in its proposed smaller buffer.

In a comprehensive written opinion, Judge Julio L. Mendez, A.J.S.C., rejected plaintiff's arguments and affirmed the Board, finding in part as follows.

The court finds that the PCR ordinance incorporates by reference nursing homes as a permitted use and the failure of one condition does not convert that use to a prohibited use requiring a use variance under N.J.S.A. 40:55D-70d(1). When read together, the PCR district allows "permitted uses in accordance with the NR zoning district requirements" and the NR zoning district defines a nursing home as a "conditional use" that is a "permitted use." Therefore, a conditional use is a type of permitted use and is incorporated by reference into the PCR district as a permitted use in that district. . . . The court finds that the proper form of relief in this matter was a conditional use variance pursuant to N.J.S.A. 40:55D-70d(3).

New Jersey courts have consistently deemed conditional uses a form of permitted use and not a prohibited use, even when the conditional use fails to meet all of the conditions pertaining to the use. . . . The Court has consistently required conditional uses that failed to meet a condition of that use to be subject only to the (d)(3) variance in conjunction with the lower level of judicially construed proofs required for that type of variance.

In this case, the court finds that the failure of the proposed nursing home to meet the specific height requirement cannot be deemed to transform the building into a different use or a prohibited use and the case law specifically stands for this proposition. . . . The court finds that the language of the PCR ordinance which incorporates "permitted uses" of the NR zone includes conditional uses as permitted uses.

As for whether the one-hundred foot buffer was required on lot 5.02, the court noted that the general provisions in Section 23-16 of the zoning ordinance provide as follows

Unless otherwise provided in this chapter, any nonresidential use, excluding public and quasi-public uses, when located on a lot or parcel adjacent to a residential district, shall conform to the following buffer requirements

A. A one-hundred-foot wide buffer shall be provided. No buildings or structures shall be permitted within the buffer area.

[Galloway Twp., N.J., Code 233-16(A).]

However, the court also noted that a specific provision in the PCR district regulations provides that

[a] minimum of 50% of the required yard and perimeter setbacks shall be landscaped in order to buffer and screen the permitted uses from adjacent properties.

[Code 233-26.1(F)(1).]

Nothing in the NR regulations addresses buffer requirements.

The court concluded section 233-26.1(F)(1) of the PCR district regulations dictated the outcome, pointing out that where there is a conflict between a general and specific provision in a statute or ordinance, the specific provision prevails.2 Thus, because Health s proposed twenty-five foot landscape buffer between the adjoining residential district and lot 5.02 conformed to section 233-26.1(F)(1), no variance was needed.

II

On appeal, plaintiff argues the trial court erred when it affirmed the Board's approval of Health's application, contending Health was required to obtain a use variance for the nursing home under N.J.S.A. 40:55D-70(d)(1), not merely a conditional use variance under N.J.S.A. 40:55D-70(d)(3), and that Health failed to show it met all conditions to obtain a conditional use variance.

As for the dispute over buffering, plaintiff concedes that if section 233-26.1(F)(1) is applicable, then a twenty-five foot landscape buffer would be allowed without a bulk variance. However, plaintiff contends that because a nursing home is permitted in the PCR district only in accordance with NR regulations and there are no NR regulations addressing buffer requirements, then "the ordinance's general buffering provision, Section 233-16, controls."

Decisions of zoning boards constitute quasi-judicial actions of municipal administrative agencies and are presumed to be valid. Price v. Himeji, LLC, 214 N.J. 263, 284 (2013). When reviewing a trial court's decision regarding the validity of a local board's determination, we are bound by the same standards as the trial court. Jacoby v. Zoning Bd. of Adjustment, 442 N.J. Super. 450, 462 (App. Div. 2004). Like the trial court, we defer to the actions and factual findings of the local board and will not disturb such findings unless they were arbitrary, capricious, or unreasonable. Ibid. However, a local board's "legal determinations are not entitled to a presumption of validity and are subject to de novo review." Wilson v. Brick Twp. Zoning Bd. of Adjustment, 405 N.J. Super. 189, 197 (App. Div. 2009). The burden to show the board's decision was arbitrary, capricious, or unreasonable is on the challenging party. Price v. Himeji, 214 N.J. 263, 284 (2013).

N.J.S.A. 40:55D-70(d)(1) permits a zoning board to "grant a variance to allow a departure from regulations . . . to permit: (1) a use or principal structure in a district restricted against such use or principal structure." N.J.S.A. 40:55D-70(d)(3) allows a board to grant a variance to permit a "(3) deviation from a specification or standard . . . pertaining solely to a conditional use."3 The latter kind of variance is referred to as a "conditional use variance." Ibid. Ordinances generally specify what conditions must be met in order for a party to obtain a conditional use variance. But the failure to meet all conditions outlined in an ordinance is not necessarily fatal to an application seeking a conditional variance. See In Coventry Square, Inc. v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285, 297-98 (1994).

In Coventry Square, our Supreme Court addressed the effect of failing to meet a condition set forth in a conditional use ordinance

[O]ur courts generally have treated a conditional use that does not comply with all the conditions of the ordinance as if it were a prohibited use, imposing on the applicant the same burden of proving special reasons as it would impose on applicants for use variances. In our view, that standard is plainly inappropriate and does not adequately reflect the significant differences between prohibited uses, on the one hand, and conditional uses that do not comply with one or more of the conditions imposed by an ordinance, on the other hand. In the case of prohibited uses, the high standard of proof required to establish special reasons for a use variance is necessary to vindicate the municipality's determination that the use ordinarily should not be allowed in the zoning district. In the case of conditional uses, the underlying municipal decision is quite different. The municipality has determined that the use is allowable in the zoning district but has imposed conditions that must be satisfied. As evidenced by this record, a conditional-use applicant's inability to comply with some of the ordinance's conditions need not materially affect the appropriateness of the site for the conditional use. Accordingly, the standard of proof of special reasons to support a variance from one or more conditions imposed on a conditional use should be relevant to the nature of the deviation from the ordinance. The burden of proof required to sustain a use variance not only is too onerous for a conditional-use variance; in addition, its focus is misplaced. The use-variance proofs attempt to justify the board of adjustment's grant of permission for a use that the municipality has prohibited. Proofs to support a conditional-use variance need only justify the municipality's continued permission for a use notwithstanding a deviation from one or more conditions of the ordinance.

[Coventry Square, supra, 138 N.J. at 297-98. (emphasis added).]

The Court reaffirmed the above-expressed principle in

TSI East Brunswick, LLC v. Zoning Bd. of Adjustment of Tp. of East Brunswick, 215 N.J. 26 (2013). The court stated that "if a property owner . . . cannot meet one or more of the conditions imposed by the zoning ordinance, the property owner must apply for a (d)(3) conditional use variance. The inability to comply with one or more of the conditions does not convert the use into a prohibited one . . . ." Id. at 43.

After carefully reviewing the record and applicable legal principles, we affirm substantially for the reasons expressed by Judge Mendez in his written opinion. Succinctly stated, under Galloway Township zoning regulations, nursing homes that are on lots in the PCR zone that do not front Jimmie Leeds Road and are not part of a planned commercial recreation complex are conditional uses. Lot 5.02 is such a lot. A nursing home on a lot of this kind is a permitted use if the conditions in the ordinance are fulfilled or substantially met.

Here, Health's proposed nursing home met all but one condition to become a permitted use. Specifically, the proposed nursing home would be one foot higher or one-half story more than allowed under the conditional use ordinance. See Galloway Twp., N.J., Code 233-21(D)(3)(i). But the failure to meet this one condition is inconsequential, if not de minimis. As Health's expert testified, no negative impacts will be realized from this minor height deviation. The fact the nursing home will be slightly higher than permitted under section 233-21(D)(3)(i) does not invalidate the Board's decision to grant Health a conditional use variance, which made the proposed nursing home a permitted use on lot 5.02.

We conclude plaintiff's remaining arguments are without sufficient merit to warrant discussion in a written opinion. Rule 2:11-3(e)(1)(E).

Affirmed.

1 The zoning district regulations employ the shorthand "NR" to refer to the "Planned Neighborhood Residential District." See Galloway Twp., N.J., Code Sec. 233.21.

2 The principle to which the court referred is a long-recognized one where, in general, specific provisions in an ordinance or statute will take precedence over general provisions. Zoning Bd. of Adjustment v. Serv. Elec. Cable Television, Inc., 198 N.J. Super. 370, 381 (App. Div. 1985) ("it is well-established that a specific statutory provision dealing with a particular subject prevails over a general statute on the same subject").

3 These two types of variances, referred to as (d)(1) and (d)(3) variances, require different standards of proof. See Medici v. BPR Co., 107 N.J. 1, 4-5 (1987); c.f. Coventry Square, Inc. v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285, 297-98 (1994). Plaintiff has not challenged the sufficiency of Health's proofs.