ltr Diane Chandler encl application package 9624

ting that because the Ordinance is silent on the definition of “hospital” and there are two different definitions in the NJDOH regulations, we should seek an interpretation from this Board. Therefore, we are filing this application for an interpretation and, if the Board upholds Ms. Gary-Adams’ interpretation, we are applying for a use variance so that the Applicantcan move promptly to a decision on the project. 4889-4793-0337, v. 1

We submit that the proposed facility is a “hospital” under either of the two NIDOH definitions. It will provide for “the diagnosis, treatment or care of individuals suffering from illness ...” and it will provide for “other medical and nursing care” for “periods exceeding 24 hours.” While it will not provide for “emergency, outpatient, surgical, obstetrical,” or convalescent care, the definition is not limited to those services and also includes “other medical and nursing care” where provided for periods exceeding 24 hours. Therefore, we submit that the proposed use is a permitted use and ask the Board to make this determination as well. Use Variance In the event that the Board upholds Ms. Gary-Adams' determination, then the Applicant requests a use variance. The proposed operator will use the existing structure without any exterior improvements that would trigger the need for site plan approval. The existing conditions also provide sufficient parking under the Ordinance. Therefore, we submit that the only relief required from this Board is a use variance, should it uphold the Zoning Officer's interpretation. As the Board is well aware, it's jurisdiction includes the authority to grant a variance, “for special reasons,” to permit a useina district restricted against such use. The proofs for demonstrating special reasons, generally referred to as the positive criteria, are substantially reduced when the use proposed is an inherently beneficial use, which is defined as follows: A use which is universally considered a 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, childcare center, group home, or a wind, solar or photovoltaic energy facility or structure. NJ.S.A. 40:55D-4. See also Med Ctr. v. Princeton Tp. Zoning, 343 N.J. Super 177, 201 (App. Div. 2001); Kunzler.v. Hoffman, 48 N.J. 277 (1966 )(nospitals are inherently beneficial uses, including a private hospital for the emotionally disturbed in a residential district). See also Scerbo v. Orange Bd. of Adj., 121 N.J. Super. 378 (Law. Div. 1972)(residential narcotic rehabilitation and treatment center under the supervision of the missioner of Health was a “hospital” and qualified as an “institutional use” under a municipal zoning ordinance)(decided priorto adoption of “inherently

d treatment center under the supervision of the missioner of Health was a “hospital” and qualified as an “institutional use” under a municipal zoning ordinance)(decided priorto adoption of “inherently beneficial use” provisions to the MLUL); Sica v. Board of Adjustment of Tp. of Wall, 127 N.J.152 (1992) (use variance upheld to permit 40-bed residential facility for the rehabilitation of head trauma victims in a residential district). Whether the proposed use qualifies as a “hospital” or not, it is abundantly clear that this facility is inherently beneficial. Our community and region, like the rest of the country, are greatly in need of facilities that will provide care for those suffering with mental illness and co-occurring disorders like substance abuse. The proposed facility will bridge a gap in the chain of services available to these individuals. Some individuals may find themselves at times in a condition, on a temporary basis, that prohibits them from living at home or in other residential settings, like a group home, but 4889-4793-0337, v. 1

medical professionals have concluded that this condition can be improved with a limited stay in a residential setting not requiring long term treatment. Without facilities like the one proposed, clients who are experiencing one of these periods of shortterm crisis would be remain in their current living situation, which could exacerbate their condition and or create safety concerns for themselves, their families and the community. Therefore, the proposed facility will clearly address an important health care need in our community and region and qualifies as an inherently beneficial use. Where a use is deemed to be inherently beneficial, that use presumptively satisfies the positive criteria required for a use variance, because such uses are assumed to promote the general welfare. Burbridgev Mine Hill Tp., 117 NJ 376, 386 (1990 ). In addition, an applicant seeking this relief, including an application involving an inherently beneficial use, must demonstrate that granting this relief can be accomplished without substantial detriment to the public good and without substantial impairment of the intent and purpose of the zone plan and zoning ordinance. N.J.S.A.40:55D-70(d). To meet this burden, the Sica court identified a four-step balancing test including the following elements. First, the board must identify the public interest at stake. Second, the board must identify the detrimental effects that would ensue from the granting of a variance. Third, the board must determine whether it can reduce any detrimental effect by imposing reasonable conditions on the use and, if so, the weight accorded the adverse effect reduced by the anticipated effect of those restrictions. Fourth, the board should weigh the positive and negative criteria; thatis, the public interest against the public detriment, and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good. At the hearing on this application, we will present operational testimony and planning testimony to justify the conclusion that this proposed use meets the Sica test. First, as explained above, this facility will meet a critical public need. Second, granting the variance will not

anning testimony to justify the conclusion that this proposed use meets the Sica test. First, as explained above, this facility will meet a critical public need. Second, granting the variance will not result in any detrimental effects. To the neighbors and the surrounding community, the use will not appear any different than the assisted living facility that occupied this property for decades. The only traffic and parking associated with the proposed use will be employees and deliveries. Because no exterior changes are proposed, there will be no detrimental‘environmental impacts. The existing facility is well landscaped and screened from neighboring properties. Third, while the Applicant will entertain any suggested reasonable conditions, we do not believe any such conditions are required because we do not identify any detrimental effects. Finally, balancing the important public purpose of this use against any conceivable negative impacts, we submit that granting of the variance will not cause a substantial detriment to the public good. Furthermore, granting the relief will not result in a substantial impairment of the intent and purpose of the zone plan or zoning ordinance. It is our position that the use is permitted in the zone. However, as our planner will explain, in the event a use variance is required, this type of use is very consistent with the zoning and current uses in this vicinity and, in fact, it continues the residential care use that operated on this facility for decades. 4889-4793-0337, v, 1

For these reasons, we respectfully submit that a use variance is appropriate and we look forward to presenting our testimony at a forthcoming meeting. 4889-4793-0337, v. 1

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