On appeal from a Final Decision of the New Jersey Department of Human Services.
King, Deighan and Bilder. The opinion of the court was delivered by Bilder, J.A.D.
This appeal involves solely a question of statutory interpretation. It seeks to determine whether N.J.S.A. 40:55D-66.2 requires that a community residence for the mentally ill be licensed pursuant to N.J.S.A. 30:11B-1 et seq., an act governing community residences for the mentally retarded and developmentally disabled.
On February 16, 1984, the Department of Human Services (Department) approved funding for a proposed group home in Piscataway to be used to house five former psychiatric patients and the staff required for their care. The home is to be run by Concerned Citizens for Chronic Psychiatric Adults (CCCPA), a nonprofit corporation engaged in providing residential care and services to persons just released from mental health facilities. On May 11, 1984, an affiliation agreement was entered into by the Division of Mental Health and Hospitals (Division), CCCPA
and the Community Mental Health Center of Rutgers School of Medicine (technically a part of the University of Medicine and Dentistry of New Jersey) (Health Center) which set forth the responsibilities of each agency with respect to the operation of the home, the services to be furnished to the clients and the provision of funding, training and oversight to the program.
No appeal was taken from the decision to fund the project but in April 1984 Piscataway sought an opinion from the Attorney General as to "whether the Department of Human Services is required by governing law to issue a license prior to the establishment of a community residence for the developmentally disabled." The response from the office of the Attorney General, dated June 11, 1984, advised Piscataway the home would house formerly mentally ill patients rather than developmentally disabled persons and that group homes of this type were not licensed by the Department.
On June 22, 1984 Piscataway filed a notice of appeal "from a final decision of the Department of Human Services, as reflected in a letter from the Department's legal counsel dated June 11, 1984, to provide funding to [CCCPA] for the establishment of a group residence for mentally ill persons at 139 Metlars Lane, Piscataway, New Jersey." Motions to enjoin further progress with the project pending the determination of
the appeal were denied. Preparations for the use of the house as a group residence have proceeded.
N.J.S.A. 40:55D-66.1, a part of the Municipal Land Use Law, provides that "community residences for the developmentally disabled . . . shall be a permitted use in all residential districts of a municipality." The term "community residence for the developmentally disabled" is defined in N.J.S.A. 40:55D-66.2 which reads in pertinent part as follows:
As used in this act: a. "community residence for the developmentally disabled" means any community residential facility licensed pursuant to P.L. 1977, c. 448 (C. 30:11B-1 et seq.) providing food, shelter and personal guidance, under such supervision as required, to not more than 15 developmentally disabled or mentally ill persons, who require assistance, temporarily or permanently, in order to live in the community, and shall include, but not be limited to: group homes, half-way houses, intermediate care facilities, supervision apartment living arrangements, and hostels. Such a residence shall not be considered a health care facility within the meaning of the "Health Care Facilities Planning Act" (P.L.1971, c. 136; C. 26:2H-1 et seq.). In the case of such a community residence housing mentally ill persons, such residence shall have been approved for a purchase of service contract or an affiliation agreement pursuant to such procedures as shall be established by regulation of the Division of Mental Health and Hospitals of the Department of Human Services. [Emphasis added.]
Piscataway contends that the section requires the CCCPA facility to be licensed pursuant to N.J.S.A. 30:11B-1 et seq. in order to obtain the special exception of N.J.S.A. 40:55D-66.1. Respondents contend the licensure provision applies only to community residences for the developmentally disabled, a group provided for by N.J.S.A. 30:11B-1, an act concerning residence for the developmentally disabled, and does not apply to such residences for mentally ill persons, a group provided for by N.J.S.A. 30:9A-1 et seq., an act concerning community health services. While both groups fall within the general umbrella of the Department, the former fall within the purview of the Division of Mental Retardation, while the latter are the concern of the Division of Mental Health and Hospitals. ...