JOHN GIERCYK v. CITY OF ESTELL MANOR PLANNING ZONING BOARD

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                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2729-15T2

JOHN GIERCYK,

        Plaintiff-Appellant,

v.

CITY OF ESTELL MANOR PLANNING/
ZONING BOARD; HENDRICKS
HOUSE, INC.; and THE FOUR
B'S,

        Defendants-Respondents.

____________________________

              Submitted May 10, 2017 – Decided December 18, 2017

              Before Judges Carroll and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Atlantic County, Docket No.
              L-0717-15.

              John Giercyk, appellant pro se.

              Nehmad Perillo & Davis, PC, attorneys for
              respondents Hendricks House, Inc. and The Four
              B's (Stephen R. Nehmad and Michael R. Peacock,
              on the brief).

        The opinion of the court was delivered by

GOODEN BROWN, J.A.D.
       Plaintiff appeals from the January 21, 2016 Law Division

order    affirming    City   of    Estell   Manor   Planning/Zoning      Board's

(Board) grant of a "D" use variance1 and site plan waiver to

Hendricks House, Inc.2 (Hendricks), a non-profit corporation that

operated    two      drug    and    alcohol     residential    rehabilitation

facilities in New Jersey.          We affirm.

       We derive the following facts from the record.           Hendricks had

a contract to purchase property from the Four B's, GP, located in

Estell Manor's Highway Commercial Zoning District (HC Zone).                  The

property contained a 13,275 square-foot, one-story building on a

thirty-four acre lot.        In addition, the property contained a paved

parking lot with twenty-seven parking spaces, a loading area,

walkways, a small basketball court, site lighting, and a storm

water management basin.        Previously, the Department of Corrections

used the property as a treatment facility housing up to thirty-

two juvenile offenders.

       Hendricks sought approval from the Board to open a drug and

alcohol    rehabilitation      facility     for   up   to   forty-four    female

residents on the property.          Hendricks applied to the Board for an

interpretation of the zoning ordinance to determine whether the



1 See N.J.S.A. 40:55D-70(d).
2
  Hendricks House, Inc., was improperly pled as Hendricks House,
LLC.

                                        2                                A-2729-15T2
proposed use was identical to the prior use and therefore within

the ambit of the previously granted use variance for the property.

In   the    alternative,     Hendricks      sought      a   use     variance   because

institutional uses were not permitted in the HC Zone.                        Hendricks

also sought a waiver of site plan approval, as no new development

was proposed with the project.

      The    Board   conducted      two    hearings      on    the   application       on

December     2,   2014   and     January       6,   2015.      In    support    of    the

application, the Board heard testimony from Audrey Carter, the

Executive     Director     of    Hendricks,         Terrence    Combs,   a     licensed

professional planner, and Sandy Mersky, a professional engineer.

Several members of the public raised concerns in opposition to the

application, citing safety issues as well as past septic issues

that impacted neighboring properties.

      At    the   hearing,      Carter    testified      that     Hendricks     was    "a

licensed residential treatment facility" funded by State and local

government and had been in operation for over twenty years. Carter

detailed the acute need for substance abuse treatment facilities

for women, the in-depth licensing process Hendricks undergoes,

Hendricks' methodical operational structure, and the restrictive

screening criteria for its residents.                 Carter also testified that

the only anticipated changes to the facility involved "clean[ing]

it up."

                                           3                                    A-2729-15T2
          Combs       confirmed       that   Hendricks        would    rehabilitate      the

building inside and outside but proposed "no expansion of the

footprint"            or   improvements.         Combs      emphasized,   however,       that

Hendricks would correct existing violations in the septic system.

Mersky's testimony pertained solely to the proposed upgrades to

the septic system.                Mersky testified that although the current

system was compliant, it would be replaced with a system designed

to       accommodate        the   "flows"     that      would   be    generated     by   the

residents, and a treatment unit would be added to ensure optimal

efficiency.            According to Mersky, there would be no change to the

site plan because the majority of the work would be underground

and the existing disposal field would be used.

          Combs testified that the proposed use "would fall under

.    .    .     the    definition[]      [for]       institutional     use,   but   .    .   .

institutional uses are not listed as permitted in any of the

zones."         Combs opined that, from a planning perspective, the prior

use       and    the       proposed    use    were     "substantially        similar"     and

"inherently            beneficial[,]"        which     is   presumed    to    satisfy     the

positive criteria.                Further, there would be "no change to the

character of the area."                  In addition, according to Combs, the




                                                 4                                  A-2729-15T2
"site is particularly suited"3 for the proposed use, as "[t]here

will be no modifications or improvements to the building other

than material layouts."

     Combs recommended that the Board grant the variance because

there was very little detriment to the public.              To support his

opinion, Combs pointed to the fact that eighty-eight percent of

the property was still "wooded and undisturbed[,]" there were

"significant and substantial natural buffers" surrounding the

property, and, given the "low-intensity use" and "low traffic

volumes[,]"4 there was "no noise or waste produced that would be

detrimental to surrounding properties."

     Following    the   hearings,    the    Board    determined   that    the

proposed   use   differed   from    the   previous   use   because   of   the

difference in the resident population.        However, the Board granted

a use variance and a site plan waiver by a vote of 6-1.           The Board

memorialized its approval in a resolution dated February 3, 2015.

In its resolution, the Board summarized the testimony, imposed

conditions on its approval to address public concerns, and found


3
  In Sica v. Board of Adjustment, the Court held that in cases
where the use is inherently beneficial, "we have never required .
. . that the site be particularly suitable . . . ." 
127 N.J. 152,
160 (1992).
4
  According to Combs, traffic would be minimal because the
residents were not permitted to have vehicles and there were only
ten employees on site.

                                     5                               A-2729-15T2
that the proposed use was "an 'inherently beneficial use' under

N.J.S.A. 40[:]55D-4" because it provides "essential health care

for an underserved population . . . ."

     On March 26, 2015, plaintiff, an Estell Manor resident and

homeowner, filed a five-count complaint in lieu of prerogative

writs   contending   that   the   Board's   decision   was   arbitrary,

capricious, or unreasonable.5 Plaintiff alleged that, in approving

the variance, the Board improperly deemed the proposed use an

inherently beneficial use and failed to engage in the requisite

balancing test enunciated in Sica v. Board of Adjustment, 
127 N.J.
 152, 165-66 (1992).6    Plaintiff also alleged that "[t]he Board

should not have waived the site plan requirement" because the

application presented an intensification of use, and the "[s]ite



5
 In his complaint, plaintiff asserted that "[he] did not formally
object at either of the hearing dates, owing in part to his
relationship with a member of the Board who happens to be his
estranged wife." Plaintiff's wife cast the only negative vote.
6
  In Sica, the Court held that "when balancing the positive and
negative criteria[,]" municipal boards should engage in the
following four-part balancing test: (1) "identify the public
interest at stake" that "may outweigh the negative criteria[;]"
(2) "identify the detrimental effect that will ensue from the
grant of the variance[;]" (3) "reduce the detrimental effect by
imposing reasonable conditions on the use" and reduce "the weight
accorded [to] the adverse effect . . . by the anticipated effect
of those restrictions[;]" 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."

127 N.J. at 165-66.

                                   6                            A-2729-15T2
plan   review    was   necessary       to    properly      evaluate      the    negative

detriments      to   surrounding       property        owners."          In    addition,

plaintiff alleged that the Board attorney tainted the voting

process by leading Board members to incorrectly believe they would

be   personally      sued    if   they      voted     to   deny    the    application.

Plaintiff claimed that to the extent Board members voted out of

fear of personal liability, the Board attorney's advice improperly

shifted the focus from the factors articulated in the Municipal

Land Use Law, 
N.J.S.A. 40:55D-1 to -163.                          Finally, plaintiff

alleged the Chairwoman was improperly recused from voting on the

application. According to plaintiff, the Board should have offered

the Chairwoman the opportunity to vote by attesting to the fact

that, despite her absence from the first hearing, she had reviewed

the transcript of that hearing.

       The trial court conducted a bench trial on the record below

on January 7, 2016.         In a January 19, 2016 written opinion, Judge

Julio L. Mendez rejected plaintiff's contentions, finding that the

Board's   resolution        granting     the    use    variance     was       "more   than

adequately support[ed]" by "the Board's findings of facts and

conclusions" and "was not arbitrary, capricious or unreasonable."

The judge also determined that the Board's decision to waive the

requirement for site plan approval was reasonable.



                                            7                                     A-2729-15T2
     In addressing the Board's balancing of the positive and

negative criteria, Judge Mendez initially found that the Board

"rightly considered Hendricks House an inherently beneficial use

and considered the public interest at stake."             Applying the

definition of "inherently beneficial use" contained in 
N.J.S.A.

40:55D-4,7 the judge noted

          Audrey Carter ("Carter"), the executive
          director of Hendriks House, Inc., offered
          extensive   testimony    on   the    need   of
          rehabilitation   facilities   for   women   in
          southern New Jersey. In 2010[,] approximately
          14.3% of New Jersey residents, or 963,000
          residents, were in need of drug and alcohol
          treatment.    There is a greater need for
          rehabilitation centers in Atlantic County
          because the majority of treatment centers are
          located in northern New Jersey. In Atlantic
          County[,] 20.5% of residents, or 43,245
          residents, were in need of drug and alcohol
          treatment; however[,] only [4124] Atlantic
          County   residents   actually   received   the
          treatment.   The demand is even greater for
          female   treatment   facilities   since   most
          treatment facilities are for men.

               The Board also heard testimony from
          Terrance   Combs   ("Combs"),    a   licensed
          professional   planner,   who   opined   that
          Hendricks was an inherently beneficial use.

     Second,   as   to   "the   potential   detriments   of   Hendricks'

proposed use[,]" Judge Mendez stated:



7 Under N.J.S.A. 40:55D-4, an "'[i]nherently beneficial use' means
a use which is universally considered of value to the community
because it fundamentally serves the public good and promotes the
general welfare."

                                    8                            A-2729-15T2
         Combs also stated that a    variance could be
         granted with very little     detriment to the
         public because Hendricks'   facility is a low
         intensity use that would    cause very little
         noise and would have no      lighting impacts
         offsite.

              . . . The main concern surrounding
         Hendricks'   application   was   whether   the
         existing septic system could accommodate
         forty[-]four (44) persons.     These concerns
         were addressed during the second hearing by
         Sandy Mersky, a professional engineer who
         specializes in septic systems.     Mr. Mersky
         offered extensive testimony on the issue and
         explained to the Board that Hendricks planned
         to replace the existing septic system with a
         system that had a treatment unit in order to
         ensure that there would be no septic issues
         going forward.      The replacement of the
         existing septic tank would not change the site
         plan since nearly all of the changes are
         underground.

    Third, the judge addressed the conditions imposed by the

Board to reduce any detrimental effect:

         [T]he Board added two (2) conditions to the
         grant of the variance and site plan waiver.
         First, the Board required Hendricks to receive
         approvals from the Pinelands [C]ommission and
         any    other    governmental    agency    with
         jurisdiction over the septic system. Second,
         in response to a neighbor's safety concerns[,]
         the Board required Hendricks to submit for
         approval a plan for a fence between the
         subject property and a neighboring property.

    Finally, the judge determined that

         [T]he Board properly granted Hendricks'
         application   because  the   hearing   record
         established that doing so would not cause
         substantial detriment to the public good. In

                               9                          A-2729-15T2
         its resolution[,] the Board found that
         Hendricks' clients would be screened for prior
         criminal offenses and were required to come
         directly from another treatment facility, and
         the facility would cause no harmful or
         unpleasant odors, noise or glare beyond the
         confines of the structure.         The Board
         concluded that the proposed use was an
         inherently beneficial use, the applicant
         intended to use an existing building and make
         essentially no site plan changes, and the
         proposed use would not create significant
         additional traffic.

    Judge Mendez rejected plaintiff's contention that the Board

misconstrued the implication of the Fair Housing Amendments Act,

42 U.S.C. §§ 3601-3631, or the Americans with Disabilities Act,

42 U.S.C. §§ 12101-12213, explaining:

              Under the Fair Housing Amendments Act
         (hereinafter "FHAA") municipalities must make
         "reasonable    accommodations     in    rules,
         policies, practices, or services when such
         accommodations are necessary to afford such
         person equal opportunity to use and enjoy"
         housing.    
42 U.S.C. 3604(f)(3)(B).      When
         deciding an application involving a protected
         group, the FHAA requires a Board to consider
         whether the requested accommodation is "(1)
         reasonable and (2) necessary to (3) afford
         handicapped person[s] an equal opportunity to
         use and enjoy housing."       Lapid-Laurel v.
         Zoning Bd. of Adjustment, 
284 F.3d 442, 457
         (3d Cir. 2002). This burden is initially on
         the applicant. If the applicant meets their
         burden, then the burden shifts to the Board
         to "prove that it could not have granted the
         variance without: (1) imposing undue financial
         administrative burdens; (2) imposing an undue
         hardship upon the Township; or (3) requiring
         a fundamental alteration in the nature of the
         program." Id. at 462.

                              10                          A-2729-15T2
               Here, the variance was justified because
          there is no "Institutional Zone" in Estell
          Manor where Hendricks' proposed use would be
          permitted.   The accommodation is reasonable
          because the property was previously used as a
          residential    treatment     and    evaluation
          facility, a use that is almost identical to
          Hendricks' proposed use.    Finally, there is
          no evidence that granting the variance would
          have caused undue financial and administrative
          burdens, undue hardship upon Estell Manor, or
          required a fundamental alteration in the
          nature of [the] zoning program.     Therefore,
          under these circumstances the [c]ourt is of
          the opinion that the Board's counsel correctly
          advised the Board as to the applicable law.
          The [c]ourt is of the opinion that the Board
          performed its function correctly under the
          law.

     Likewise, the judge rejected plaintiff's contention that the

Board's grant of the use variance would substantially alter the

character of the district.   Applying Township of Dover v. Board

of Adjustment, 
158 N.J. Super. 401, 412-13 (App. Div. 1978), Judge

Mendez concluded:

          The proposed use is almost identical to the
          prior approved use of the property. Hendricks
          is not making substantial modifications to the
          site; the only modification, replacing the
          existing septic system, will be almost
          entirely underground. Hendricks has proposed
          no new construction or expanding the existing
          building.   The [c]ourt also notes that the
          property sits in a very large lot with
          substantial buffers and is located on a
          commercial highway with no impact [to] any
          residential neighborhood. For those reasons,
          the Board's grant of the use variance does not


                               11                          A-2729-15T2
          substantially   alter   the     character   of   the
          district.

     Finally, the judge upheld the Board's decision to grant

Hendricks a site plan waiver, explaining:

          Waivers from site plan approval may be granted
          as long as the waiver is "reasonable and
          within the general purpose and intent of the
          provisions    for   site   plan   review[.]"[]
          
N.J.S.A. 40:55D-51(b). Hendricks proposed no
          new construction or additions to the existing
          building on the property.          Mr. Mersky
          testified that any replacement or upgrade to
          the property's septic system would be done
          within the existing system's footprint, and
          the footprint of the disposal field would not
          be enlarged.    Members of the public raised
          concerns over storm water infiltration issues.
          Hendricks did not propose any modifications
          to the existing basin on the subject property.
          Moreover, Mr. Combs testified that Hendricks
          will perform routine maintenance on the
          existing basin to ensure proper infiltration.
          Under   these   circumstances,   the   Board's
          decision to waive the requirements of site
          plan approval was reasonable.

On January 21, 2016, the judge entered an order of judgment

affirming the Board's decision.        This appeal followed.

     In reviewing a planning board's decision, we use the same

standard used by the trial court.       Cohen v. Bd. of Adjustment, 
396 N.J. Super. 608, 614-15 (App. Div. 2007).        Like the trial court,

our review of a planning board's decision is limited.            Smart SMR

of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 
152 N.J.
 309, 327 (1998).   We give deference to a planning board's decision


                                  12                               A-2729-15T2
and will reverse only if its action was arbitrary, capricious, or

unreasonable.    Zilinsky v. Zoning Bd. of Adjustment, 
105 N.J. 363,

367 (1987).    A planning board's decision is presumed to be valid,

New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd.

of Adjustment, 
160 N.J. 1, 14 (1999), in recognition of the fact

that they possess "peculiar knowledge of local conditions[,]"

which entitle such boards to wide latitude in the exercise of

discretion.     N.Y. SMSA, LP v. Bd. of Adjustment, 
370 N.J. Super.
 319, 331 (App. Div. 2004).

       On appeal, plaintiff renews the arguments presented to the

trial court.     In addition, plaintiff raises specious claims that

were not presented to the trial court.        Regarding the latter, we

find   insufficient   merit   in   defendant's   arguments     to   warrant

discussion in a written opinion.         R. 2:11-3(e)(1)(E).    Moreover,

this court "will decline to consider questions or issues not

properly presented to the trial court when an opportunity for such

a presentation is available unless the questions so raised on

appeal go to the jurisdiction of the trial court or concern matters

of great public interest."         State v. Robinson, 
200 N.J. 1, 20

(2009) (quoting Nieder v. Royal Indem. Ins. Co., 
62 N.J. 229, 234

(1973)).    As to plaintiff's renewed arguments that were rejected

by the trial court, we affirm substantially for the reasons set



                                    13                              A-2729-15T2
forth in Judge Mendez's comprehensive and well-reasoned written

decision.    We add only the following comments.

     Under N.J.S.A. 40:55D-70(d)(1):

                 The board of adjustment shall have the
            power to:

                 . . . .

            In particular cases for special reasons, grant
            a variance to allow departure from . . . this
            act to permit . . . a use or principal
            structure in a district restricted against
            such use or principal structure . . . .      A
            variance under this subsection shall be
            granted only by affirmative vote of at least
            five members, in the case of a municipal
            board . . . .

     An applicant seeking a use variance must demonstrate "special

reasons" — commonly referred to as the positive criteria — why the

variance should be granted.      
N.J.S.A. 40:55D-70(d)(1). "Special

reasons" are those that promote the general purposes of zoning,

enumerated in 
N.J.S.A. 40:55D-2.       Burbridge v. Twp. of Mine Hill,


117 N.J. 376, 386 (1990) (citing Kohl v. Mayor of Fair Lawn, 
50 N.J. 268, 276 (1967)).     "Special reasons" generally fall into one

of three categories:

            (1) [W]here the proposed use inherently serves
            the public good, such as a school, hospital
            or public housing facility, see [Sica, 127
            N.J. at 159-60]; (2) where the property owner
            would suffer "undue hardship" if compelled to
            use the property in conformity with the
            permitted uses in the zone, see Medici v. BPR
            Co., 
107 N.J. 1, 17 n.9 (1987); and (3) where

                                  14                           A-2729-15T2
              the use would serve the general welfare
              because "the proposed site is particularly
              suitable for the proposed use." [Smart SMR,
              
152 N.J. at 323.]

              [Saddle Brook Realty, LLC v. Twp. of Saddle
              Brook Zoning Bd. of Adjustment, 388 N.J.
              Super. 67, 76 (App. Div. 2006).]

       An applicant for a use variance must also satisfy what are

known as the "negative criteria."            Specifically, an applicant must

show   that    the   variance   "can    be    granted     without    substantial

detriment to the public good[,]" and "will not substantially impair

the intent and the purpose of the zone plan and zoning ordinance."

Price v. Himeji, LLC, 
214 N.J. 263, 286 (2013) (quoting 
N.J.S.A.

40:55D-70).      "The showing required to satisfy the first of the

negative criteria focuses on the effect that granting the variance

would have on the surrounding properties."              Ibid. (citing Medici,


107 N.J. at 22 n.12).        "The proof required for the second of the

negative criteria must reconcile the grant of the variance for the

specific project at the designated site with the municipality's

contrary     determination    about    the    permitted    uses     as   expressed

through its zoning ordinance."         Ibid. (citing Medici, 
107 N.J. at
 21).   This requires, "in addition to proof of special reasons, an

enhanced quality of proof and clear and specific findings by the

board of adjustment that the variance sought is not inconsistent

with   the    intent   and   purpose   of     the   master   plan    and    zoning


                                       15                                  A-2729-15T2
ordinance."      Medici, 
107 N.J. at 21.          However, "the enhanced

standard does not apply to inherently beneficial uses" as found

here.     Sica, 
127 N.J. at 155.        Applying the above standards, we

discern    no   reason   to   disturb   the   Board's   or   Judge   Mendez's

decision.

    Affirmed.




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