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The Borough of Merchantville v. State of New Jersey Department of Human Services

October 25, 1999

THE BOROUGH OF MERCHANTVILLE, PLAINTIFF-APPELLANT,
V.
STATE OF NEW JERSEY, DEPARTMENT OF HUMAN SERVICES, DIVISION OF MENTAL HEALTH SERVICES, DEFENDANT-RESPONDENT.
TOWNSHIP OF PENNSAUKEN, PLAINTIFF-APPELLANT,
V.
STATE OF NEW JERSEY, DEPARTMENT OF HUMAN SERVICES, DIVISION OF MENTAL HEALTH SERVICES, DEFENDANT-RESPONDENT.



Before Judges King, Carchman and Lefelt.

The opinion of the court was delivered by: Lefelt, J.S.C. (temporarily assigned)

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 6, 1999

On appeal from a Final Decision of State of New Jersey, Department of Human Services, Division of Mental Health Services.

To address a compelling need for affordable housing for mentally ill homeless individuals, the New Jersey Housing and Mortgage Finance Agency, the University of Medicine and Dentistry of New Jersey and the Division of Mental Health Services, within the Department of Human Services, secured funding to provide scattered-site housing for homeless mentally ill persons in Camden County. The University and the Mortgage Finance Agency called this program "Housing with a Heart." In these appeals, the Borough of Merchantville and the Township of Pennsauken challenge the Department of Human Services' licensing of several community residences that were established pursuant to this program. Because the facts and issues raised by the municipalities are similar, we have consolidated the appeals solely for purposes of this opinion. Merchantville and Pennsauken question whether the Department of Human Services has complied with its regulatory and statutory responsibilities concerning the licensing, location and staffing of these residences. We conclude that the administrative agency has so complied and we affirm the licensing of these facilities.

Community residences for the developmentally disabled, including the mentally ill, are permitted uses in all residential districts of any municipality. N.J.S.A. 40:55D-66.1 and -66.2. Community residences for the mentally ill require a license from the Department of Human Services ("Department") pursuant to appropriate regulations promulgated by the Department's Commissioner. N.J.S.A. 30:11B-4. The Commissioner delegated this licensing authority to the Director of the Division of Mental Health Services ("Division"). N.J.A.C. 10:37A-2.1. To become licensed, a provider agency must demonstrate the intent and capability to operate a community residence in accordance with the controlling regulations. N.J.A.C. 10:37A-1.1 to -9.7.

The goal of the "Housing with a Heart" program was to reduce the number of homeless people with mental health problems living on the streets and in homeless shelters and to improve the community life of homeless mentally ill individuals in Camden County. Under this program, three provider agencies were licensed to operate the four community residences that Merchantville and Pennsauken challenge.

The Steininger Center was licensed to serve five persons at 45 Volan Street in Merchantville. South Jersey Behavioral Health Resources was licensed to serve three persons at 2261 39th Street and four persons at 3621 Camden Avenue in Pennsauken. The University of Medicine and Dentistry of New Jersey was licensed to serve five persons at 7100 Waldorf Street also in Pennsauken. All of these residences are considered group homes because they are single family residences or structures "containing three or more dwelling units, all of which are utilized for the provision of residential care services." N.J.A.C. 10:37A-1.2.

Merchantville and Pennsauken object to the licensing of these facilities in their communities and point to various rules and statutory requirements they claim were violated by the Department. We address each of the objections advanced by both municipalities.

Merchantville claims that the one group home in its community on 45 Volan Street has been improperly staffed and violates N.J.A.C. 10:37A-1.2, which requires that group homes have staff that "reside or are stationed either on-site or in immediate close proximity."

The group home in Merchantville as well as the homes in Pennsauken have been developed to serve persons who require no more than one to four hours of in-home supervision weekly. Only high functioning individuals were selected for these homes. According to the Division, this level of supervision is considered "C" level and means that staff will be on-site a minimum of one hour per week, but typically staff is "on-site" providing services three to four hours per week.

Because N.J.A.C. 10:37A-1.2 permits staff to reside either on-site or be stationed on-site, the rule does not necessarily require that staff be on-site twenty-four hours a day. Instead, the rule must be interpreted in conjunction with the clinical needs of the residents, who also must "live in the most normalized, least restrictive environment possible." N.J.A.C. 10:37A-1.1(d). Because the homes in question contain persons who require no more than four hours of supervision weekly, the staffing at "C" level meets the N.J.A.C. 10:37A-1.2 requirements.

Furthermore, Merchantville's group home also meets the alternative staffing requirement of "immediate close proximity." N.J.A.C. 10:37A-1.2. Merchantville claimed that on-call staff were in another town and could not possibly be considered in "immediate close proximity." However, the Merchantville residence is quite close to the Pennsauken border and on-call staff are available in nearby Collingswood, Cherry Hill and Camden.

Most significantly, the Steininger Center, which runs the Merchantville group home, provides a full range of community-based acute care mental health services in conjunction with Our Lady of Lourdes Hospital in Camden. The Center operates twenty-four hours a day and serves more than 5,000 clients a year. Staff at the Center have extensive experience in providing comprehensive mental health services. Our Lady of Lourdes Hospital is less than five miles, by several routes, to the Merchantville group home. Accordingly, we cannot fault the Director's finding that staff "are available twenty-four ...


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