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Open Door Alcoholism Program Inc. v. Board of Adjustment

Decided: April 9, 1985.


On appeal from Superior Court of New Jersey, Law Division, Middlesex County.

Morton I. Greenberg, O'Brien and Gaynor. The opinion of the court was delivered by Gaynor, J.A.D.


[200 NJSuper Page 193] Plaintiff appeals from a judgment upholding a decision of defendant, Board of Adjustment (Board), revoking a building permit covering the renovation of premises at 256 Seaman Street, New Brunswick, required to make it suitable for use as a halfway house for ten recovering alcoholics. The Board determined that this proposed use was not a permitted use under the zoning ordinance nor did it constitute a continuation of a prior use authorized by a variance grant. In so concluding, the Board found the intended residents of the premises would not be functioning as a family unit and that the use of the

building as a halfway house for alcoholics differed from that permitted under the previously granted variance. The trial court upheld the Board's determination, citing the transient nature of the residency. We agree and affirm.

A building permit had been issued to plaintiff by the construction code official and zoning officer of the City of New Brunswick covering renovations to the building to bring it into compliance with the applicable standards for rooming and boarding houses. The permit had been issued by the officer based upon his determination that the proposed use was authorized as a nonconforming use under the previously granted variance permitting the building's use as a residence for homeless girls. Homeowners within the area of the property, organized as the Seaman Street Homeowners Association, appealed the issuance of the building permit to the Board of Adjustment. After a hearing, the Board revoked the permit and plaintiff thereupon instituted the present action to set aside the revocation.

The subject property is located within the R-B residential district which permits detached single-family dwellings, public and private nonprofit schools and churches. Conditional permitted uses include multi-family dwellings limited to townhouse, apartment and garden apartment buildings, two-family dwellings and community-based residences for the mentally retarded. The intent and purpose of such zoning as set forth in the ordinance is

The house is a two and one-half story structure, containing five bedrooms, two and one-half bathrooms and one kitchen. It is located on a narrow lot and is in close proximity to adjoining residences. The immediate area of Seaman Street is fully improved with residential buildings. In 1973 the property had been a licensed rooming and boarding house pursuant to a variance permitting its use as a permanent home sponsored by

the Y.W.C.A. of Central Jersey for residency by girls and house parents, but specifically prohibiting occupancy by delinquents or mental patients or the presence of drugs. The record does not indicate when this use was terminated.

Plaintiff is a nonprofit corporation and has been in existence for about seven years, operating a day care program in New Brunswick providing group and family counseling and also providing counseling services for probationers at various facilities. It has a contract with the Department of Health, Division of Alcoholism, to operate the proposed halfway house for ten residents. According to plaintiff, the house would not be run as a treatment facility, but as a home. The residents would be persons referred from various facilities after having satisfactorily completed treatment for alcoholism. The average length of stay at the halfway house would be six months although a resident could leave at any time. Every effort would be made to establish as much of a family atmosphere as possible with the residents sharing in the cooking and living responsibilities and eating together. Visitors would be allowed only in the open area of the house and an 11 o'clock curfew would be enforced. While certified alcoholism counselors would conduct group therapy sessions in the house, no psychological counseling would be included. As a prerequisite of residency an applicant would have to be employable and obtain employment within a certain period of time after entering the program. Persons with criminal problems would be ineligible for the halfway house program and any resident who resumed drinking would be required to leave. The property would contain no signs identifying it as a halfway house and a resident house manager would be employed to administer the operation.

The resolution of the Board memorializing its revocation of the building permit granted by the construction code official contains eight findings of fact relating to the nature of plaintiff's proposed use of the property together with the following five findings as reasons for its action:

There was no evidence that there would be adequate areas for recreation of the men on the premises which lack would be detrimental to the area. The closeness of the houses in the neighborhood is not conducive to a successful ...

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