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Isko v. Planning Board of Township of Livingston

Decided: February 5, 1968.

IRVING ISKO, GEORGE FUCHS, LEONARD WOLFE, MORTON SCHWARTZ, RICHARD SLUTZKER, SAMUEL RATNER, SHELDON HORING, THEODORE SCHATZBERG AND LLOYD JANOW, PLAINTIFFS-APPELLANTS,
v.
PLANNING BOARD OF THE TOWNSHIP OF LIVINGSTON, BOARD OF ADJUSTMENT OF THE TOWNSHIP OF LIVINGSTON AND THE TOWNSHIP OF LIVINGSTON, A MUNICIPAL CORPORATION, AND ST. BARNABAS MEDICAL CENTER, DEFENDANTS-RESPONDENTS



For affirmance -- Chief Justice Weintraub and Justices Francis, Proctor, Goldmann and Schettino. For reversal -- None. The opinion of the court was delivered by Francis, J.

Francis

The Board of Adjustment of the Township of Livingston granted what it designated a variance from the building height restrictions of the township zoning ordinance to permit St. Barnabas Medical Center to construct a wing to be added to its existing main hospital building located on Old Short Hills Road. The Planning Board thereafter approved the site plan as required by the ordinance. Plaintiffs, residents and owners of nearby property, after unsuccessfully opposing the Center's application before the Boards, instituted this action in lieu of prerogative writ in the Superior Court, Law Division, to attack the grant. The Law Division affirmed the action of the Board of Adjustment, holding that it was authorized by the general zoning statute N.J.S.A. 40:55-39(c). Plaintiffs appealed and we granted certification before the matter was argued in the Appellate Division.

Although the trial court affirmed the action of the Board of Adjustment in authorizing a permit for the new construction, it reversed the Planning Board approval of the site plan because of alleged procedural due process deficiencies.

That aspect of the case was remanded for rehearing in accordance with directions set forth in the opinion. Jurisdiction thereof was retained by the trial court pending disposition by the Planning Board. Without waiting for the rehearing there, plaintiffs took the present appeal from the part of the judgment which affirmed the so-called variance. This should not have been done. The appeal should have awaited Planning Board action on the remand, and review thereof by the Law Division. In that manner, a complete and final judgment on all issues would have been presented to us for decision. Other procedural questions have been raised also, particularly whether plaintiffs' Law Division suit was instituted within the time prescribed by our rule, R.R. 4:88-15(b)(3). In view of the public nature of the case, we have decided to put aside all such problems and to dispose of the basic question on the merits.

In the late 1950's, after nearly a century of hospital operation in Newark, N.J., St. Barnabas decided to establish a modern medical center elsewhere. A large tract was needed because its intention was to design and construct such a center in accordance with modern standards and technology for hospital administration and diagnosis, medical and surgical treatment, and care of patients. It is obvious from the record that the plan envisioned main and appurtenant hospital buildings, accessory outbuildings, large parking facilities, and adequate buffer zones between the hospital complex and the streets and the surrounding land areas. In 1958 a 65-acre site was located and acquired on Old Short Hills Road in Livingston, N.J. At the time of acquisition, a number of muncipalities in the westerly portion of Essex County, i.e., West Orange, South Orange, Maplewood, Millburn (Short Hills), Verona, Essex Fells, Roseland, The Caldwells, Fairfield, Cedar Grove and Livingston, were without general hospital facilities. Their total population in 1950 was 128,949. The 1960 census showed an increase of about 35% to 173,899, and it is a matter of common knowledge that the substantial growth has continued

since that census. There can be no doubt as to the public utility of a hospital center in the locality.

When the tract was purchased it was located in a district designated Residence AA by the Livingston zoning ordinance. A hospital (other than one for contagious or mental diseases) was a permitted use in the district at the authorization of the Board of Adjustment, subject to such conditions as the Board might impose. (This is really a special exception of the type authorized by N.J.S.A. 40:55-39(b)). These conditions related to the general character and height of the structure, surrounding open spaces, street capacity, and "the preservation of the general character and well being of the neighborhood * * *." St. Barnabas made an application for a hospital complex to the Board of Adjustment and on April 17, 1958 it was unanimously approved and the Building Inspector was directed to issue a permit "for the development and construction of a Medical Center" on the site, subject to certain conditions. The conditions related to distances of any buildings to be erected from the front, side and rear lines of the property, and the maintenance "of a natural buffer consisting of the trees and other growth presently existing on the hospital tract to a depth of at least 100 feet along the westerly or Ross Road property line of the tract, and to a depth of 75 feet along the northwesterly and northeasterly property lines of the tract."

No specific limitations were placed on the number of buildings to be constructed. Certain height restrictions were imposed, however, which are of significance and must be noted.

With respect to height of buildings in the residence zone, the ordinance provided:

"Dwellings shall not exceed 2 1/2 stories or 35 feet in height. There shall be no limitation upon the height of non-residential structures, except that for each foot the height of a building exceeds 35 feet the total width of the two side yards shall be increased by 2 feet." (Emphasis added.)

Undoubtedly on the basis of that provision, the Board added a height condition to its approval of the proposed construction:

"The main hospital building or any appurtenance thereto shall not exceed a maximum height of 105 feet from ground level."

No one suggests that either the original main hospital building or the proposed new wing has violated or will violate the side yard requirement or the 105-feet height limitation. Another factor must be noted also. Obviously when the authorization to build the Center was granted, the Board had two types of structures in mind and differentiated between them. One type was the main hospital building and "any appurtenance thereto"; the other type was described as "any outbuilding." The former was allowed a height of 105 feet; but as to the latter the permit said "any outbuilding to be constructed and used in conjunction with the medical center shall not exceed a height of 35 feet or 2 1/2 stories, whichever shall be the lesser." The authorization was prospective in scope and undoubtedly contemplated issuance of specific permits by the Building Inspector for the various projects as the Center developed. When the authorization was given, none of the plaintiffs' homes had been built.

Shortly after the Board's 1958 general grant, the Building Inspector issued a permit and construction began on the main 600-bed hospital building. As one would expect, this building, together with the planning and development of the grounds, accessory roads, power plant, parking lots, etc., was a large undertaking and involved a considerable period of time. This phase of the project was completed in July 1965 at a cost of about $16,000,000, although the Center had begun actual operations in November 1964. Nobody has ever claimed, as far as the record reveals, that there was any undue delay in this phase of the construction work, or that when it was finished the Medical Center was complete and no further structures, buildings or additions were contemplated.

It should be mentioned at this point that on July 20, 1959, about 15 months after the Board of Adjustment grant of permission to construct the Medical Center, the Township adopted a revised zoning ordinance. Under the revision, hospitals continued to be permitted uses in the residence districts, subject, as formerly, to approval of the site plan by the Planning Board. The provision of the earlier ordinance, which specifically excluded any height limitations on non-residential structures, such as hospital buildings, was eliminated. The new section, which is still in force, says:

"No building shall exceed a maximum of two and one-half stories or 35 feet in height, whichever is the lesser."

The record shows that as far back as 1962, St. Barnabas contemplated hyperbaric chambers for the hospital and made public statements with respect to such an additional facility. Its president testified that long before the main hospital building was completed, the design and location of the structure to house the chambers had been considered. The appendix contains a site plan prepared by a firm of architects and issued on June 24, 1965, showing the proposed six-story "Hyperbaric Wing" and its location with respect to the main building. It appears also that in early October 1965 an architect representing the firm which had been acting for the Center presented to the Director of the Livingston Department of Planning and to the Building Inspector plans and specifications for a six-story structure, one wall of which would be the existing north wall of the main building. The first two floors were designed to house the hyperbaric chambers, and the upper four floors were to provide an additional 150 beds. This presentation was made because it was the view of the Center officers that the proposed ...


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