On appeal from the Superior Court, Law Division, Essex County.
Pressler, Long and Landau. The opinion of the court was delivered by Pressler, P.J.A.D.
This is an action in lieu of prerogative writs. Plaintiff Jayber, Inc., a New Jersey corporation, owns and operates a 131-bed nursing home located on an approximately five-acre portion of a 13.3 acre tract it owns in West Orange. It sought a use variance from the West Orange Board of Adjustment permitting it to construct and operate a 120-unit senior citizen congregate care housing facility adjunctive to the nursing home on another five-acre portion of the tract. The variance, subject to stated conditions, was granted by the board of adjustment, whose decision was appealed by objecting neighbors to the governing body. The governing body, after a de novo review, denied the variance, and plaintiff filed this complaint in the Law Division against the Township seeking relief from that denial. The objecting neighbors intervened. Plaintiff now appeals from the judgment of the Law Division dismissing its complaint. We reverse.
The material facts are not in substantial dispute. The premises are located on Northfield Avenue in an OB-1 zone. At the time of the municipal decision appealed from, the permitted uses in that zone included single family residences, office buildings, governmental uses, golf courses, and specific agricultural uses. Permitted conditional uses included gasoline stations, theaters, public utility buildings, and telephone exchanges. The nursing home was thus a nonconforming use which had been permitted by an earlier variance. During the
pendency of this matter in the Law Division, the ordinance was amended to permit nursing homes, hospitals and sanitariums in the OB-1 zone. The effect of the amendment was to render the present nursing home a conforming use. We do not address the question of whether the amendment also renders the proposed use a conforming one since we are convinced that the variance was improperly denied.
The congregate care facility which plaintiff proposes to construct is intended to provide housing and support services for elderly persons who are no longer able, by reason of age and associated disability, to live entirely independently but who are also not sufficiently ill, disabled or dependent to require nursing home placement. The facility was described by various of plaintiff's witnesses before the board of adjustment as something between traditional senior citizen housing consisting of fully self-contained apartments and a nursing home. This description applies not only to the modicum of support services implicit in the congregate housing plan but to its physical attributes as well. Hence, characteristics such as density, individual room area, common area per resident, and percentage of common area overall also lie between those typical of senior citizen housing and those typical of nursing homes. More specifically, this congregate housing plan proposes a two-story building containing 120 residential units of about 450 to 500 square feet in area, each containing full bath, bedroom, and modest kitchenette equipped with a small refrigerator and a two-burner stove. Each unit will be single occupancy except that double occupancy will be available for related persons, spouses, sisters, or brothers. In addition, there will be a congregate dining room in which each resident will be required to take a main meal daily. There are also proposed to be lounges, recreational and social activities, an exercise facility, a "wellness center," a nurse on the premises, physical and occupational therapy facilities, laundry facilities, a staffed "front desk," and other support services. Linens and housekeeping services are also to be provided. It is further anticipated that
there will be a certain amount of movement between the congregate care facility and the nursing home, which would, in effect, back each other up as a resident's personal situation improved or deteriorated. The monthly rental, which would include one meal daily, housekeeping services, and access to the support facilities, is presently projected at between $1,500 and $1,800 monthly and is not expected to be governmentally subsidized.
According to the proofs, New Jersey does not presently define or control congregate housing by statute or regulation other than the extent to which it may constitute a boarding or rooming house within the jurisdiction of the Department of Community Affairs. See generally N.J.S.A. 55:13B-1 to 21, and implementing regulations. It is not a facility within the jurisdiction of the State Department of Health's certificate of need procedure. However, Dr. Richard Goldstein, formerly State Commissioner of Health and now president of Continental Health Affiliates, plaintiff's parent corporation,*fn1 explained that during his tenure as Commissioner, the Department's policy manual governing long-term care facilities and services, codified as N.J.A.C. 8:33H, was amended to require applicants for a certificate of need for long-term nursing home beds to propose as part of the application both institutional and noninstitutional alternatives, the institutional alternatives including "residential health care, congregate housing, for example." N.J.A.C. 8:33H-3.3(a)(4). This amendment was not in effect when plaintiff's nursing home was granted, but as Dr. Goldstein testified, applicants for a nursing home certificate of need must now comply with it. Thus,
the health department is not going to even consider such an application to build a nursing home unless their projects also come with alternative non-institutional beds and what they spell out here is residential facilities or congregate housing.
In other words, the health department was forcing nursing home developers to not only develop nursing home beds, but also to develop congregate housing and what precludes that policy is the clear notion that congregate housing is less expensive than nursing home beds. It is a pseudo-health care facility, if you will.
New Jersey ranks very high in the per capita elderly population. We have a very serious problem in New Jersey with housing the elderly. The health department looks upon itself to lower the cost of health care by providing less expensive alternatives for appropriate patients, those that would not need the total nursing services in a nursing home.
So residential health care facilities, congregate housing is part of the alternatives we are trying to offer the elderly in this state. Now, this application is a little different since the nursing home already existed. They already had a certificate of need, it was approved a long time ago. They had a nursing home on that particular site and now they are coming in to put up congregate care so that they are not involved in a situation of a certificate of need. The congregate care facility is not a health care facility per se under the legal definition.
It is a step down from a nursing home. That is, the patient will have a certain degree of independent living; yet, at the same time, the patients will have the opportunity for communal dining, they will have the opportunities for maid service, they would be transported in vans so that we try to maintain as much independent living as they are capable of.
Our elderly are faced with a situation where they just cannot seem to make it in their own apartments or own houses and only care to give them, people think, is to put them in a nursing home. Our elderly clearly want more alternatives and our health department has already recognized the great expense in terms of institutionalizing them and this is supposed to be somewhere midway between housing and a nursing home.
We further note that while congregate housing for the elderly, whether low-income or not, is not a defined or regulated concept in this state,*fn2 it is recognized as a constituent element of housing alternatives for low-income elderly by a variety of federal enactments. See, e.g., 42 U.S.C.A. § 1437e (congregate housing for displaced or elderly low-income families); 42 U.S.C.A. § 8001 to -10 (congregate housing services for elderly
persons receiving assistance from public housing agencies or nonprofit corporations); 42 U.S.C.A. § 1485(e)(3), implemented by 7 C.F.R. § 1944-205(h) (congregate housing for the elderly within the Department of Agriculture rural housing program).
The foregoing proofs respecting the nature of the proposed use were adduced in support of plaintiff's burden of demonstrating the requisite special reasons for the variance applied for. With respect to meeting the so-called negative criteria, the plaintiff relied on its proofs that the proposed use was significantly less intense and intrusive upon the surrounding area than permitted uses would be, particularly a 100,000 square foot office building. The primary focus of the objectors' concern was the potential traffic consequences of the application, both in terms of exacerbating already heavy traffic on Northfield Avenue and congesting the two side streets which would join Northfield Avenue to the proposed access to the facility. Plaintiff's experts testified, however, that Northfield Avenue, as demonstrated by gap studies, could accommodate the anticipated increase in vehicular traffic, especially since it could be expected that many, if not most, residents would not be driving or maintaining vehicles on the site and since there would likely not be a time-period concentration of vehicular movement. Moreover, the congregate housing use would, according to the experts and as a matter of common experience, generate substantially less vehicular traffic on Northfield Avenue than permitted uses, particularly a permitted office-building use. With respect to access to the site, not only the objecting neighbors but also the municipal engineer was concerned with the traffic consequences in respect of the residential side streets. Prior to the conclusion of the hearing before the board of adjustment, the plaintiff was able to represent to the board its ability and willingness to provide access directly onto Northfield Avenue in such manner as the engineer would recommend.
The ensuing resolution of the board of adjustment granting the requested variance made these ...