Planning Report Zinnia Health West Orange NJ

sources that were entirely under the regulatory control of the DHSS. • In Jayber, Inc. v. Municipal Council, 238 N.J. Super. 165 (App. Div.), certif. den. 122 N.J. 142 (1990), where the governing body reversed the grant of a variance for a congregate care housing facility for senior citizens on a tract of land upon which a nursing home, hospital and sanitarium already existed, the decision was reversed by the Appellate Division and the variance granted by the board of adjustment was reinstated. Although the congregate care facility was to be operated as a profit making enterprise the court pointed out that the Supreme Court in Medici v. BPR Co., 107 N.J. 1, 18 (1987) recognized that there are some commercial uses which do "inherently serve the general welfare." The Jayber court found that the proposed use would in fact promote the general welfare as had been determined by the board of adjustment. • The Supreme Court in Sica v. Board of Adjustment of Tp. of Wall, 127 N.J. 152, 160 (1992), has held that the site suitability test does not apply to inherently beneficial uses. The designation of a use as inherently beneficial has been characterized as an "analytic short-cut", i.e. a "convenient shorthand in clear-cut cases for the analysis of positive criteria that would otherwise be required." Bell Atlantic v. Riverdale Zoning, 352 N.J. Super. 407, 411 n.2 (App. Div. 2002).

Planning Report – Zinnia Health November 8, 2024 33 Mount Pleasant Avenue, West Orange NJ John McDonough Associates, LLC Land Use Planning · Landscape Architecture 7 101 Gibraltar Drive, Suite 1A, Morris Plains, NJ 07950 · Phone: 973.222.6011 · Fax: 973.786.6537 Based on the above cases and excepts, the board may find that, if use relief is required, the use can be considered “inherently beneficial” and the simplified Sica standard may be applied in lieu of the more stringent Medici or Coventry standard. The court in House of Fire v. Clifton Bd. of Adj., 379 N.J. Super. 526, 535 (App. Div. 2005) clarified that when an application involves a conditional use that is also inherently beneficial, then the Sica standard should apply over Coventry. The board planner outlines the simplified 4-prong balancing test, below: 1. The board should identify the public interest at stake. 2. The Board should identify the detrimental effect that will ensue from the grant of the variance. 3. In some situations, the local board may reduce the detrimental effect by imposing reasonable conditions on the use. 4. The Board should then 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. Based on all the information provided above and for all the same positive and negative reasons set forth elsewhere in this report, the four prongs of the Sica balancing test are met. Even if the more stringent Medici or Coventry standards are deemed to be required, those tests are also met. Conclusion The application is for adaptive reuse and conversion of a former nursing home to a mental health facility. The adaptive reuse will serve a beneficial purpose and have minimal if any impacts. The statutory criteria for grant of any or all relief are met, and approval is warranted.

Planning Report – Zinnia Health November 8, 2024 33 Mount Pleasant Avenue, West Orange NJ John McDonough Associates, LLC Land Use Planning · Landscape Architecture 8 101 Gibraltar Drive, Suite 1A, Morris Plains, NJ 07950 · Phone: 973.222.6011 · Fax: 973.786.6537 Figure 1 ~ Aerial satellite imagery of subject site (Block 88 Lot 26) and surroundings. The site is developed with a one- story building formerly utilized as an assisted living facility (Canterbury Nursing Home) and related parking lot. Figure 2 ~ Aerial drone photograph of subject site and surroundings – the site is near town hall, the police station, and Route 280 with new construction across the street (taken by John McDonough Associates on October 14, 2024) SITE TOWN HALL POLICE

Planning Report – Zinnia Health November 8, 2024 33 Mount Pleasant Avenue, West Orange NJ John McDonough Associates, LLC Land Use Planning · Landscape Architecture 9 101 Gibraltar Drive, Suite 1A, Morris Plains, NJ 07950 · Phone: 973.222.6011 · Fax: 973.786.6537 Qualifications of Preparer John McDonough Associates, LLC is a land use planning and landscape architecture consulting firm with office location in Parsippany, New Jersey. John McDonough, LA, PP, AICP is a licensed professional planner and landscape architect in the State of New Jersey. Both licenses are current and in good standing. He is also a member of the American Institute of Certified Planners. All licenses have been obtained through requisite showing of educational and experience requirements and passing of license examinations (none have been achieved through reciprocity). All licenses have been maintained through participation in mandatory continuing education courses. Mr. McDonough has been practicing as a land use consultant for over 37 years. He has been recognized as an expert in land use matters before hundreds of boards and commissions throughout the State of New Jersey, and in Superior Courts. He has been a regular speaker at the League of Municipalities annual conference and at Rutgers University Bloustein School of Planning and Public Policy. The last two years he was a speaker at the national conference of the American Institute of Architects (AIA) in San Francisco and Chicago.

Planning Report – Zinnia Health November 8, 2024 33 Mount Pleasant Avenue, West Orange NJ John McDonough Associates, LLC Land Use Planning · Landscape Architecture 10 101 Gibraltar Drive, Suite 1A, Morris Plains, NJ 07950 · Phone: 973.222.6011 · Fax: 973.786.6537 Appendix A – Application Rider

RIDER TO APPLICATION FOR INTERPRETATION/USE VARIANCE 33 MT. PLEASANT AVENUE, BLOCK 88 LOT 26 Applicant LS SB Canterbury LLC (“Applicant”) is the owner of property located at 33 Mount Pleasant Avenue, Block 88 Lot 26 on the West Orange Tax Map. Applicant proposes to lease the property to Zinnia Health LLC, for the purpose of operating a residential behavioral health facility for the treatment of mental health, disorders and other, often co-occurring disorders like substance abuse. The facility would operate as an extended stay facility where patients would typically remain for a period of approximately 30 - 60 days. For many years, the property was used for the Canterbury Assisted Living facility, which closed in 2023 and has been vacant since. Interpretation Request The property is located in the OB- 2 zone, in which “hospitals” are a permitted use. By letter of July 25, 2024, the West Orange Zoning Officer, Geniece Gary- Adams, concluded that the proposed use is not a “hospital.” As explained in her correspondence, the Ordinance does not define “hospital.” Therefore, Ms. Gary-Adams defaults to a definition from the New Jersey Department of Health (“NJDOH”), as follows:Facilities for the diagnosis, treatment or care of individuals suffering from illness, injury or deformity and where emergency, outpatient, surgical, obstetrical, convalescent or other medical and nursing care is rendered for periods exceeding 24 hours.Our research revealed a slightly different definition found in the NJDOH Hospital Licensing Standards, as follows: An institution, whether operated for profit or not, whether maintained, supervised or controlled by an agency of the government of the State or any county or municipality or not, which maintains and operates facilities for the diagnosis, treatment or care of two or more non-related individuals suffering from illness, injury or deformity and where emergency, outpatient, surgical, obstetrical, convalescent or other medical and nursing care is rendered for periods exceeding 24 hours. N.J.A.C. 8:43G-1.2 By letter of August 6, 2024, we explained our position to Ms. Gary-Adams. By letter of August 15, 2024, she responded, stating 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

use 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 Applicant can 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 NJDOH 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 use in a 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 notlimited to, a hospital, school, childcare center, group home, or a wind, solar or photovoltaic energy facility or structure. N.J.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 )(hospitals 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

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 prior to 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, itis 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 experiéncing one of these periods of short term 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. Burbridge v 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 onthe 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; that is, 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 4 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