Opinion
DOCKET NO. A-4286-13T2
06-19-2015
HOPE AND COMFORT, A NEW JERSEY NON-PROFIT CORPORATION, Plaintiff-Respondent, v. EGG HARBOR TOWNSHIP ZONING BOARD OF ADJUSTMENT, Defendant-Appellant.
Bergman Law Offices, P.A., attorneys for appellant (Stanley L. Bergman, Jr., on the brief). Gemmel, Todd & Merenich, P.A., attorneys for respondent (Charles Gemmel, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano, Ostrer and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-5755-13. Bergman Law Offices, P.A., attorneys for appellant (Stanley L. Bergman, Jr., on the brief). Gemmel, Todd & Merenich, P.A., attorneys for respondent (Charles Gemmel, on the brief). PER CURIAM
Plaintiff Hope & Comfort is a non-profit corporation that owns 22.42 acres of land in Egg Harbor Township (the Township). The property is located in the CRW zone, which permits residential uses. Prior to purchasing the property in 2012, plaintiff met with the Technical Review Committee (TRC) of the Township Planning Board and was advised that site plan approval would not be necessary for construction of plaintiff's proposed hospice. Plaintiff purchased the property, filed an application with the New Jersey Department of Health for the necessary certificate of need, and again met with the TRC for review of its plans.
By then, the size of the proposed hospice had grown. Originally designed to house fifteen patients in a 9300 square foot facility with eighteen parking spaces, the plan met the requirements of the Township's zoning regulations for single family dwellings. However, by early 2013, the plans proposed a 12,083 square foot facility with twenty bedrooms, twenty-six parking spaces and a storm water retention basin. In March, plaintiff appeared before the TRC again and advised that it would be scaling down the project to its prior size. However, after reviewing the plans as submitted, the TRC recommended that plaintiff file its plans with the Planning Board for site plan approval.
Instead, plaintiff filed an application with defendant, the Township's Zoning Board of Adjustment (the Board). Plaintiff sought the Board's review of the TRC's decision that plaintiff must submit a site plan application for approval. See N.J.S.A. 40:55D-70(a) (granting the board of adjustment the power to "[h]ear and decide appeals where it is alleged . . . that there is error in any . . . decision . . . made by an administrative officer based on or made in the enforcement of the zoning ordinance").
The Board held a public hearing, after which, by a unanimous vote, it passed a resolution requiring plaintiff to submit a site plan application to the Planning Board. The resolution contained the Board's findings that
pursuant to [N.J.S.A.] 40:55D-70(b) [] the ordinances of . . . [the] Township do not permit the applicant to avoid a site plan application . . . as the [B]oard finds that although [N.J.S.A.] 40:55D-66.1 permits hospices to obtain the status of beneficial use that such statute does not require the municipality to waive site plan action . . . . [t]he noted statute deals only with the requirement that such uses are given the bulk requirements of residential zones in the municipality but that the structure and conditions in said property are still subject to site plan action based on the size and commercial nature of said structure and improvements.
There was testimony before the Board by plaintiff's professional planner that the proposed building had been downsized to 9300 square feet and met all the "bulk requirements" of the Township's zoning regulations. The plans last submitted to the TRC were for a larger building. Vincent Polistina, an administrative official from the TRC, testified that those plans proposed a "mini-hospital," for which the Planning Board "should retain jurisdiction to review" "things such as parking, lighting, stormwater, buffers, [and] landscaping."
Plaintiff filed this action in lieu of prerogative writs, seeking a determination that it did "not need site plan approval in order to construct and maintain a community residence for the terminally ill . . . and that the decision of the [Board] to the contrary was arbitrary, capricious and unreasonable." The Board filed its answer, and the parties appeared before Assignment Judge Julio L. Mendez for oral argument. In a written opinion that followed, the judge set forth each sides' arguments.
The record reflects that plaintiff also simultaneously attempted to obtain site plan approval. In his written opinion, Judge Mendez stated the application "process became onerous," was not yet complete and was being held "in abeyance pending the disposition of th[e] prerogative writ action."
Plaintiff argued that pursuant to N.J.S.A. 40:55D-66.1, the hospice was deemed a single family dwelling, a permitted use in the zone. See ibid. (providing that "community residences for the terminally ill . . . shall be a permitted use in all residential districts of a municipality, and the requirements therefor shall be the same as for single family dwelling units located with such districts"). We note that pursuant to N.J.S.A. 40:55D-37, planning boards may approve subdivisions and site plans, "except that subdivision or individual lot applications for detached one or two dwelling-unit buildings shall be exempt from such site plan review and approval." Judge Mendez took note of the Township's ordinance § 225-25(A) (the Ordinance), which provides:
A site plan shall be required . . . for all buildings except single-family dwellings, two-family dwellings, farm buildings or for such accessory uses as a private garage, private swimming pool or toolhouse. A site plan shall be required for the land disturbance of any area in excess of 5,000 square feet for the purpose of excavation, soil removal, site clearing or filling of land contemplated for development, excluding agricultural purposes. . . .
[Egg Harbor Township, N.J., Code § 225-25(A) (emphasis added).]
The judge noted the Board's contention that site plan approval was needed because plaintiff's building was not a single-family dwelling and its "commercial nature and size . . . has a substantial impact on the surrounding residential community." Additionally, the Board argued that the Ordinance required site plan approval whenever more than 5000 square feet of land was disturbed, regardless of the particular use involved, and plaintiff's proposal anticipated a land disturbance to which the Ordinance applied.
Judge Mendez reasoned that pursuant to both N.J.S.A. 40:55D-66.1, and the Ordinance, plaintiff did not need to obtain site plan approval. Considering the plain language of the statute, Judge Mendez concluded that community residences were permitted uses in all residential districts, subject to "the requirements . . . for single family dwelling units located within such districts." Ibid. (emphasis added). Pursuant to N.J.S.A. 40:55D-66.2, plaintiff's project was a qualifying "'community residence for the terminally ill.'" See ibid. (defining same as "any community residential facility operated as a hospice program providing food, shelter, personal guidance and health care services, under such supervision as required, to not more than 15 terminally ill persons").
The judge rejected the Board's contention that as used in N.J.S.A. 40:55D-66.1, the term "requirements" meant only "bulk requirements," such as lot size or set-backs. He noted the statute contained no such limitation, and such an interpretation was contrary to the legislative intent, which, citing our decision in Borough of Merchantville v. State, Department of Human Services, Division of Mental Health Services, 325 N.J. Super. 258, 267-68 (App. Div. 1999), the judge said was "to encourage the development of hospices . . . and to prevent a municipality from imposing requirements that would hinder the development of hospices." The judge took note that plaintiff had already met community resistance to its project.
Turning to the Ordinance, Judge Mendez recognized a "longstanding principle . . . that a municipality may not enact an ordinance or interpret an ordinance in such a way that [ ] is inconsistent with a valid state statute such as the MLUL." He rejected the Board's interpretation of the Ordinance, i.e., that any "land disturbance" of more than 5000 square feet independently triggered site plan review, finding that even if the Ordinance was "valid on its face, [it] may not be interpreted . . . as to provide municipalities authority to do that which has already been prohibited by state statute."
The Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163.
Judge Mendez entered the order under review that declared the Board's decision requiring plaintiff to obtain site plan approval was "erroneous and inconsistent with N.J.S.A. 40:55D-66.1." This appeal followed.
Before us, the Board reiterates the arguments made before Judge Mendez. Having considered them in light of the record and applicable legal standards, we affirm, substantially for the reasons expressed by Judge Mendez in his thoughtful opinion. We add only the following comments.
The issues presented are purely questions of law under the MLUL and the Ordinance to which we apply de novo review. Nuckel v. Little Ferry Planning Bd., 208 N.J. 95, 102 (2011) (citing Fallone Props. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004)); Bubis v. Kassin, 184 N.J. 612, 627 (2005). "Because the planning and zoning power stems from legislative allowance, it must be exercised in strict conformity with the delegating enactment — the MLUL." Nuckel, supra, 208 N.J. at 101 (citation omitted); Toll Bros., Inc. v. Bd. of Chosen Freeholders of Burlington, 194 N.J. 223, 242 (2008) (citation omitted). While "a municipality's informal interpretation of an ordinance is entitled to deference, that deference is not limitless," and we consider the "meaning of an ordinance's language" de novo. Dowel Assocs. v. Harmony Twp. Land Use Bd., 403 N.J. Super. 1, 29-30 (App. Div.) (quoting Bubis, supra, 184 N.J. at 627), certif. denied, 197 N.J. 15 (2008).
When originally enacted in 1978, N.J.S.A. 40:55D-66.1 read as follows:
Community residences for the developmentally disabled shall be a permitted use in all residential districts of a municipality, and the requirements therefor shall be the same as for the single family dwelling units located within such districts; provided, however, that, in the case of a community residence for the developmentally disabled housing more than six persons . . . a zoning ordinance may require for the use or conversion to use of a dwelling unit to such a community residence, a conditional use permit . . . . Any requirements imposed for the issuance of a conditional use permit shall be reasonably related to the health, safety and welfare of the residents of the district; provided, however, that a municipality may deny such a permit to any proposed community residence for the developmentally disabled which would beIn 1997, when the Legislature amended the statute to include "community residences for the terminally ill," it also significantly revised other provisions. L. 1997, c. 321, § 1. Essentially, all language following and including the words "provided, however" was repealed. Ibid. The amendment eliminated the ability of a municipality to treat community residences as "conditional uses" in residential zones, or impose other previously-imposed conditions because those "provisions [had] been found to be invalid as violative of the federal 'Fair Housing Amendments Act of 1988' in two federal district court decisions." Ibid.
located within 1500 feet of an existing such residence; provided further, however, that a municipality may deny the issuance of any additional such permits if the number of developmentally disabled and mentally ill persons resident at existing such community residences within the municipality exceeds 50 persons, or 0.5% of the population of the municipality, whichever is greater.
[L. 1978, c. 159, § 1 (emphasis added).]
Those decisions were The ARC of New Jersey, Inc. v. State of New Jersey, 950 F. Supp. 637 (D.N.J. 1996), and Association for Advancement of the Mentally Handicapped, Inc. v. City of Elizabeth, 876 F. Supp. 614 (D.N.J. 1994). --------
As Judge Mendez found, the language of N.J.S.A. 40:55D-66.1 is clear, and our brief recitation of its legislative history further supports the conclusion that qualified hospices may be subject to the "requirements," and only the requirements, a municipality imposes upon a single-family dwelling in the zone. The MLUL exempts "one or two dwelling-unit buildings" from the need for site plan review. N.J.S.A. 40:55D-37. As such, under the MLUL, plaintiff's proposed hospice was not required to submit an application for site plan review to the Planning Board.
The Ordinance specifically exempts "single-family dwellings" from the need for site plan review and, in this regard, was entirely consistent with the MLUL. However, the Board argues that the second part of the ordinance — "[a] site plan shall be required for the land disturbance of any area in excess of 5,000 square feet" — provides an independent basis to require plaintiff to submit a site plan application. However, "an ordinance must not be inconsistent with state or federal constitutional requirements or other preempting legal authority[,]" and "must conform to MLUL requirements and further MLUL goals." Griepenburg v. Twp. of Ocean, 220 N.J. 239, 253 (2015) (citing Rumson Estates, Inc. v. Mayor & Council of Fair Haven, 177 N.J. 338, 351 (2003)). "State legislation preempts a municipal zoning ordinance when the ordinance 'expressly forbids something which is expressly authorized by statute or permits something which a statute expressly proscribes.'" Bubis, supra, 184 N.J. at 629 (quoting Tumino v. Long Beach Twp., 319 N.J. Super. 514, 520 (App. Div.) certif. denied, 161 N.J. 332 (1999)).
Without reservation, the MLUL exempts single-family dwellings from site plan review. To the extent the second part of the Ordinance creates an exception to that exemption, it "permits something which [the MLUL] expressly proscribes." Ibid.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION