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Lazovitz v. Board of Adjustment

Decided: October 28, 1986.

STEPHEN LAZOVITZ, PLAINTIFF-RESPONDENT,
v.
BOARD OF ADJUSTMENT, BERKELEY HEIGHTS, NEW JERSEY, DEFENDANT-APPELLANT



On appeal from Superior Court, Law Division, Union County.

King, Havey and Muir.

Per Curiam

This case comes before us on an expedited basis. Our opinion supplements one given orally on October 8, 1986 at Trenton.

Defendant appeals a trial court reversal of its denial of a use variance to construct a four-story nursing home in a single-family residential zone.

Plaintiff, purchaser under contract of approximately 4.7 acres on Springfield Avenue, Berkeley Heights, made application to defendant to construct a 58-foot high, 5-story nursing home containing 240 beds. Plaintiff subsequently amended its plans to encompass a 46-foot high, 4-story nursing home for 180 beds. The property was zoned R-15, single-family residential.

At time of application, plaintiff held a certificate of necessity from the State Department of Health. The certificate authorized the construction of a 240-bed nursing home anywhere in Union County.

Plaintiff presented testimony from its president, a former employee of the State Department of Health, an architect, a traffic expert, a real estate expert, a planning consultant and several other witnesses. The Chairman of the Berkeley Heights Planning Board and several property owners testified

in opposition. The supervisors of the Berkeley Heights Water Pollution Control Plant, which is contiguous with the subject property, also testified.

Defendant, in its resolution denying the application, made the following factual findings:

A. The Subject Property

1. The subject property contains 4.774 acres.

2. The subject property is located on Springfield Avenue. That portion of Springfield Avenue which is located in the R-15 Zone has been developed almost exclusively by permitted uses.

3. Practically all of the property in the R-15 Zone along Springfield Avenue is occupied by single family residences. This Board recently granted a variance for a 9,840 square feet office building for two doctors, Aquino and Galanti, for property located at 261 Springfield Avenue. The front of that property was in the B Zone and the rear of the property, which was to be used for parking, was in a residential zone. A principal justification for that variance was that the property had an approved variance, which was valid, for an 11,200 square feet office building and the necessary parking.

4. There are no constraints, except for that portion of the site in the flood plain, which would preclude construction on the subject property.

5. In front of the subject property are four one family residences.

6. To the rear of the subject property is land which is owned by the Township of Berkeley Heights. Situated on that property is a drainage channel and an equalization basin which is discussed in a subsequent section of this Resolution.

7. Daisy Road is a paper street to the west of the site. The subject property could be developed for single family residential use in ...


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