On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Ard, King and McElroy. The opinion of the court was delivered by King, J.A.D.
This case concerns the right of a physician and his professional corporation to a certificate of occupancy to operate a privately owned, professional office for use as a clinical facility for methadone maintenance treatment of heroin addicts in the Primary Business District (B-1) of the Town of Irvington. The Law Division granted summary judgment in favor of the town, ruling that the proposed use was not permitted by the zoning ordinance in the B-1 district but required a special use or conditional permit. See N.J.S.A. 40:55D-67. We reverse and order the town to issue the requested certificate of occupancy.
Plaintiff, Dr. LaMorgese, a medical doctor and specialist in internal medicine licensed by New York and New Jersey, is the majority stockholder in plaintiff L & L Clinics, Inc. On February 25, 1982 he leased premises at 57-59 New Street in the B-1 district in Irvington. On March 3 he applied for an occupancy permit for "medical professional offices" to be operated from 7 a.m. to 5 p.m. The premises had previously been used for professional offices for the board of education and had been vacant since 1979. On March 10 an occupancy permit was issued.
On May 6 the permit was rescinded in writing because Dr. LaMorgese failed "to state on your application that your basic intention was to establish a methadone clinic for treatment of problems resulting directly from heroin." On May 25 the municipal council of Irvington, a town of 61,500 bordering on the City of Newark, passed an unanimous resolution which concluded
NOW THEREFORE BE IT RESOLVED BY THE MUNICIPAL COUNCIL OF THE TOWNSHIP OF IRVINGTON that:
1. There is no need for a Methadone Clinic in the Township of Irvington.
2. Irvington refuses to be the center of treatment to Heroin and Cocaine drug addicts drawn from all the other municipalities in Essex County.
3. Irvington is a Township of families and children who should not be exposed to the fear and hazard which occur in locations which do have such clinics.
4. The Regional Health Planning Council be advised that the Township of Irvington strongly opposes the application to establish a Methadone Maintenance Clinic at 57-59 New Street, Irvington, New Jersey.
As further background, since 1977 Dr. LaMorgese has been the Director of the Main Street Clinic in Paterson, a methadone maintenance program operated under the auspices of the State Department of Health. In 1982 he received a certificate of need from the State Department of Health for the proposed Irvington facility on New Street. When granting the State's certificate of need, Dr. Koplin of that Department stated:
In accordance with the provisions of N.J.S.A. 26:2H-1, et. seq., and consistent with the recommendation of the Statewide Health Coordinating Council, I am approving your request for a Certificate of Need as contained in your project application which was submitted for processing in the review cycle of April 15, 1982. The basis for this approval includes the following reasons:
1. According to the 1979 New Jersey Combined Alcohol and Drug Abuse State Plan, Essex County has the highest drug use rate in the State and this rate exceeds that of the highest standard metropolitan statistical area (SMSA) in the country.
2. This project has the potential to reduce the burden on existing clinics in the area, specifically the Newark clinics.
3. There is a waiting list of 252 Essex County patients anticipating methadone maintenance treatment.
The uses permitted by the Irvington zoning ordinance in B-1, Primary Business District, were:
608.1-1 Retail outlet and personal service uses as, or ...