2325 COM Cover Letter re Zinnia Health Objection w Exs

6 i. Based on the significant differences between a traditional hospital and the proposed use, as identified in item III (1) above, this request should be rejected by the Board. 2. REQUEST FOR CONSIDERATION THAT THE PROPOSED USE IS A NURSING HOME OR LONG-TERM CARE FACILITY AND THEREFORE PERMITTED AS A CONDITIONAL USE IN THE OB-2 ZONE. i. Due to the plain fact that the proposed use is not even called a nursing home or long-term care facility in the application, together with the reasons in item III (2) above that the proposed use and a nursing home are substantially different in nature, this proposition must also fail. ii. The planning argument that the site hosted a nursing home/ long-term care facility previously and the proposed use continues such use is not rooted in any credible evidence that demonstrates the two uses are one and the same. iii. The facts on the record thus far for this application indicate that in terms of operations, duration of stay and specific services provided by each use (nursing home/long-term care facility and proposed use), the two uses are distinctly different. Furthermore, a “nursing home” and a “long-term care residential health care facility” are permitted conditional uses in the OB-2 Zone and a “residential mental health and substance abuse treatment facility” is not even mentioned anywhere in the Township’s Chapter 25 Development Regulations. The West Orange Chapter 25 Development Regulations are structured as a “permissive” ordinance, such that in order for a use to be allowed, it must be specifically listed as either a permitted use or a conditionally permitted use. In the absence of any mention of the proposed use in Chapter 25, the use is clearly not permitted in any Zoning District in the Township of West Orange. 3. REQUEST FOR A D1 USE VARIANCE FOR A USE NOT PERMITTED IN THE ZONE, IF THE OTHER REQUESTS ARE DENIED

7 i. The Applicant’s Planning Report asserts that this use should be considered an “Inherently Beneficial” use and as such, the D(1) variance request should be reviewed pursuant to the relaxed standard set forth in the Sica v Wall Township NJ Supreme Court decision, which does not require demonstration of site suitability or special reasons or the policy reconciliation/enhanced quality of proof test. ii. This author sees the proposed use not as inherently beneficial but rather as one of many commercial uses that have manifested to serve those with mental health disorders and substance addictions. It is noted that many medical uses that do good for their patrons are not afforded inherently beneficial use status. For example, any of the medical offices surrounding the subject site may be saving lives and reducing suffering but are not elevated to inherently beneficial status. They are simply providing medical treatment and care to people in need. Similarly, land use permitting applications for cellular communication towers and cell phone communication antennae are typically reviewed under the Sica standard of review, due to the many public benefits they afford. Yet, the Court stopped short of declaring cellular communications facilities inherently beneficial, noting they shall still be regarded as a commercial use. Thus, not every use that does substantial public good in New Jersey may or should be considered inherently beneficial. It is determined case-by-case. iii. Additionally, the proposed use is described in the Application Rider to the effect that it is all benefit and no detriment. However, the proposed use in the proposed location may be quite problematic, for the following reasons: 1. Introduction into a stable neighborhood of a facility that will house in a concentrated manner on a revolving basis a very large new population of troubled individuals who may come and go at will without their own transportation would be a sharp change in land use not contemplated or vetted by the Township Committee or Planning Board. It

8 is one thing to provide medical services applicable to the general population. It is quite another matter to concentrate a large number of suffering individuals with unknown backgrounds and potentially violent and/or criminal histories on a site that is effectively not buffered at all from surrounding uses, which include many residents, presumably including children, and businesses. 2. Due to the potential emotional and mental instability of some prospective facility residents, Township EMS and Police service capacity may be exceptionally burdened by frequent visits to the subject premises and where such calls involve incidents outside the facility, the quality of life and business climate may be substantially diminished. iv. If the Board does determine that the proposed use is inherently beneficial, the above detriments should be weighed against the claimed benefits of the proposed use. The Board may impose reasonable conditions to mitigate impacts. However, the optimum accommodation of the proposed use would be to locate it on a well-buffered site that is not so proximate to residential and business uses, which cannot realistically be done at 33 Mount Pleasant Avenue. v. If the proposed use is determined to not be inherently beneficial, the following D(1) Use Variance analysis is offered for the Board’s consideration: 1. Particular Suitability – The site is particularly unsuitable for the proposed use. It is in a highly inappropriate location, closely surrounded by stable existing residential and commercial uses in which the potential for ongoing land use conflicts is high. It is poorly buffered by distance from surrounding uses. The existing building is only a few feet from an existing dwelling and there are numerous dwellings within 500 feet of the subject property. The site driveway is narrow and may easily become obstructed and block emergency access.

9 2. Special Reasons – The Applicant’s planning report asserts that several purposes of the Municipal Land Use Law would be advanced by the subject proposal. a. Purpose A – Project delivers a beneficial use. This claim is not supported in the planning report by credible evidence that the benefits of the use outweigh the detriments. b. Purpose G – Provide a variety of uses in appropriate locations according to the needs of the State’s citizens. Research by this author revealed that there are many residential/24 hour mental health and substance abuse treatment centers within 10 miles of the subject site, which may satisfy the need in this geographic area. The site is not a particularly suitable or appropriate location for this use, as noted above. c. Purpose I – Promote a desirable visual environment. The Applicant’s planning report cites the current appearance of the existing facility as a basis for advancing this purpose. This should be given very little weight in light of the potential detriments from the operation of the use. d. Purpose M – Promote the efficient use of land. Adaptive re-use of the existing building is more of a benefit to the applicant than the public, due to the potential for ongoing conflicts from the operation of the proposed facility. This point should also be afforded very little weight. 3. Prong 1 of the negative criteria, public detriment. a. The Applicant’s planning report asserts there will be no substantial detriment to the public on the basis of operational and management testimony by the Applicant. This conclusion is premature, as all stakeholders have yet to comment.

10 b. The planning report claims that the use is compatible with the mixed land use character in the area and delivers a health care use on a site that has historically been associated with a health care use. The proposed use has never been on this site and is a potentially detrimental use for the existing stable uses around it. The prior use was more residential in character, whereas the proposed use is a treatment center with an expected steady flow of hundreds of transient occupants per year. Transient occupancy by troubled persons, especially of such magnitude as is proposed, may have an ongoing de-stabilizing effect on the surrounding neighborhood. 4. Prong 2 of the negative criteria – substantial impairment to the intent and purpose of the zone plan (Master Plan) and zoning ordinance. The Applicant’s planning report states that there would be no such impairment because the use is akin to many of the medical uses that are permitted in the OB-2 zone and the degree of departure is not substantial. These assertions are flawed for the following reasons: a. The proposed use is not addressed or even mentioned in the most recent re-examinations of the Master Plan. Nor is it specifically permitted in the Zoning Ordinance (Chapter 25), making it a prohibited use per section 25-3.2.d. b. The surrounding uses are office buildings, which are permitted uses. The proposed residential mental health and substance addiction treatment center is anything but an office building. c. As discussed above, there are significant differences in the nature of the proposed use that fail to align it with any of the permitted conditional uses in the OB-2 Zone.

11 d. The proposed use is not new or emerging. It has been present in nearby Essex County communities for decades. It is therefore illogical that the Governing Body was not aware of it as it considered modifications to the Chapter 25 regulations over time. Therefore, the proposed non-permitted use fails the required “enhanced quality of proof” evaluation to reconcile its ongoing omission from the Zoning Ordinance as a permitted use. V. CONCLUSIONS. The proposed use, which would intensively concentrate a great number of transient, troubled persons in a single location in very close proximity to stable, low- density residential uses and businesses, is sharply different from any use permitted in the OB-2 District and the prior use of the property. It is therefore hostile to the West Orange Zone Plan and Zoning Ordinance, which make no specific reference or accommodation for permitting, either as-of-right or conditionally, a mental health facility/substance abuse treatment facility. Due to the potential for ongoing use conflicts in the surrounding neighborhood, the use would be a poor fit in the proposed setting and does not meet the criteria under the Sica analysis for inherently beneficial uses or the Medici analysis for non- inherently beneficial uses. Finally, there is no valid basis for a finding that the proposed use is a permitted conditional use in the OB-2 Zone.

12 ABOUT THE AUTHOR MICHAEL J. PESSOLANO, PP, AICP, is Principal and founder of MJP Land Use Planning LLC. Since its founding in 2010, MJP Land Use Planning has served private and public sector clients by providing professional planning services in development and redevelopment contexts. His work mainly involves extensive participation in hearings concerning development as an expert planning witness, serving applicants and objectors. Prior to forming his own company, Mr. Pessolano was a Senior Planner and Project Manager with H2M Associates, Inc. in Parsippany where he oversaw the delivery of development review services to 6 Northern New Jersey Municipalities and provision of planning products to a variety of client communities. He holds a Master of Urban Planning degree from City University of New York, Hunter College and is a licensed Professional Planner in the State of New Jersey and a licensed real estate salesperson in New Jersey.

Exhibit 2a Linda Rodgers-Cromer, LCADC v. Zinnia Health LLC, Daniel Cincotta, Deena Scher, Docket No.: ESX-L-004622-23

-1- Paul G. Hunczak (N.J. Attn. ID#039691989) Douglas C. Gray (N.J. Attn. ID#008672007) MORRIS, DOWNING & SHERRED, LLP One Main Street, Box 67 Newton, New Jersey 07860 (973) 383-2700 Attorneys for Plaintiff, Linda Rodgers-Cromer, LCADC ________________________________________________ : SUPERIOR COURT OF NEW JERSEY LINDA RODGERS-CROMER, LCADC, : LAW DIVISION: ESSEX COUNTY : DOCKET NO.: ESX-L-________-2023 Plaintiff, : : Civil Action -v- : : COMPLAINT & JURY DEMAND ZINNIA HEALTH LLC, DANIEL CINCOTTA, : DEENA SCHER, JOHN and JANE DOES : 1-10, and ABC and XYZ CORPS 1-10, : Severally and jointly, : : Defendants. : ________________________________________________ : Plaintiff, Linda Rodgers-Cromer, LCADC (“Plaintiff” or “Rodgers”), by way of Complaint against Defendants Zinnia Health LLC, Daniel Cincotta, Deena Scher, John and Jane Does 1-10 (fictitious names), and ABC and XYZ Corps. 1-10 (fictitious names), says: THE PARTIES AND VENUE 1. Plaintiff is a resident of Essex County, New Jersey, having an address at 295 Hunterdon Street, Newark, New Jersey 07103. 2. Defendant Zinnia Health LLC (“Zinnia”) is a for-profit corporation organized and existing under the laws of the State of California having a principal place of business at 520 Newport Center Drive, Ste 550, Newport Beach, California 92660.ESX-L-004622-23 07/19/2023 2:53:48 PM Pg 1 of 13 Trans ID: LCV20232124530

-2- 3. Zinnia holds itself out as a leader in the substance use and mental health treatment field and operates treatment facilities in Florida, California, Colorado, Indiana, Rhode Island and New Jersey. 4. Among the facilities owned and operated by Zinnia is the Endeavor House North treatment facility and sober house located at 206 Bergen Avenue, Kearny, New Jersey 07032 (“Endeavor House”). 5. Defendant Daniel Cincotta (“Cincotta”) is a resident of New Jersey who at all relevant times served as Zinnia’s Vice President of Operations and had oversight responsibilities for the Endeavor House. Upon information and belief, Cincotta maintains a principal residence at 16 Vermeer Drive, Apt 17, South Amboy, New Jersey 08879. 6. Defendant Deena Scher (“Scher”) is a resident of New Jersey who at all relevant times served as Zinnia’s Regional Human Resources Manager and had oversight responsibilities for the Endeavor House. Upon information and belief, Scher maintains a principal residence at 25 Ellen Heath Drive, Matawan, New Jersey 07747. 7. Upon information and belief, Defendants John and Jane Does 1-10 are managers, employees, agents, servants or workmen of and/or independent contractors retained or otherwise authorized by Zinnia that were involved in the discriminatory and retaliatory conduct identified herein. 8. Upon information and belief, Defendants ABC and XYZ Corporations 1-10 are employees, agents, servants or workmen of and/or independent contractors retained or otherwise authorized by Zinnia that were involved in the discriminatory and retaliatory conduct identified herein.ESX-L-004622-23 07/19/2023 2:53:48 PM Pg 2 of 13 Trans ID: LCV20232124530