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Starns v. American Baptist Estates of Red Bank

June 27, 2002

LESTER STARNS, ROBERT SUDANO, LISA BURGO, LUTHER SROKA, HUSEYIN UZUNALIOGLU, NICK FUGARO, LORI ANN FUGARO, JO-ANN FITZPATRICK, MILLIE FORINO, AND AUDREY LEROY, PLAINTIFFS-APPELLANTS,
v.
AMERICAN BAPTIST ESTATES OF RED BANK, T/A THE NAVESINK HOUSE AND THE NAVESINK GABLES, INC., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L- 3763-00.

Before Judges King, Cuff and Winkelstein.

The opinion of the court was delivered by: Cuff, J.A.D.,

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: May 30, 2002

In this appeal, we must decide whether the demolition of a thirty-three unit apartment building to allow construction of an addition to an existing continuing care retirement community constitutes retirement of the apartment building from residential use and good cause to evict the tenants of the apartment building. We hold that it does and affirm.

Defendant American Baptist Estates of Red Bank (American Baptist), t/a The Navesink House (Navesink House), operates a continuing care retirement community at 40 Riverside Avenue in Red Bank. Navesink House offers living units featuring a continuum of care for senior citizens sixty-five years of age and older in a variety of living units, including independent living, licensed residential health care, and skilled nursing. Navesink House maintains both an on-site medical treatment facility and a full-time medical staff. These units and certain community facilities are located in a twelve-story building.

Navesink House is located in the Waterfront Development zoning district of Red Bank. The adjacent property is a five- story apartment building containing thirty-three units known as the Twin Gables. Most of the remaining tenants have moderate incomes and pay relatively modest rents, generally under $1000 per month.

American Baptist acquired the Twin Gables with the express purpose of demolishing the existing apartment building and constructing an addition to Navesink House. In November 1999, American Baptist applied for a use variance, various bulk variances and site plan approval to effectuate its expansion plan. It proposes to construct a new five-story building which will contain thirty-two additional independent living units, an underground parking facility, an indoor pool, café, lounge, library, media room and other community spaces. The addition will be connected to the existing Navesink House. The initial proposal included independent living units of 1000 square feet with full kitchens, washers and dryers, and two baths. We have been advised that since the trial judge considered this matter, American Baptist has revised its plan for the new independent living units by increasing the size of each unit. On completion the entire facility as planned would have 170 independent living units.

To accomplish the proposed expansion, American Baptist sent each tenant of the Twin Gables notices of eviction on July 31, 1999. Each letter stated as follows:

The existing Gables building is being permanently retired from the residential market. We recognize that this will result in the need for you to relocate. We apologize for the inconvenience that this will cause you, but we must give this Notice to you under N.J.S.A. 2A:18-61.1(h). You must vacate your apartment no later than February 28, 2001.

Because American Baptist failed to provide a copy of each letter to the Borough of Red Bank and the Department of Community Affairs, a second letter was sent to each tenant on January 19, 2001. This letter stated that each lease was terminated as of July 19, 2002. It further stated that the building was being retired from residential use "so that the property may be redeveloped and integrated into the adjacent Navesink House Continuing Care Retirement Community." At the time this notice was sent, seventeen of the thirty-three apartments were occupied. We were informed at oral argument that ten apartments remain occupied.

On August 8, 2000, Lester Starns, Robert Sudano, Lisa Burgo, Luther Sroka, Huseyin Uzunalioglu, Nick Fugaro, Lori Ann Fugaro, Jo-Ann Fitzpatrick, Millie Forino, and Audrey LeRoy (the tenants) filed a complaint and obtained an order to show cause to enjoin the eviction proceedings. Because the judge found that the July 1999 notice of eviction failed to comply with the Anti-Eviction Act, N.J.S.A. 2A:18-61.1, he declined to address whether American Baptist's planned expansion qualified as "retirement from residential use." See Sacks Realty Co. v. Batch, 248 N.J. Super. 424, 426 (App. Div. 1991) (punctilious compliance with all statutory eviction procedures required). New notices were sent in January 2001; the eighteen-month notice period expires on July 19, 2002.

Having sent complying notices, Judge D'Amico addressed the substantive issue of whether the proposed addition to Navesink House qualifies as good cause for eviction. On April 20, 2001, Judge D'Amico held that the addition to the Navesink House is not the substitution of one residential use for another. Therefore, he ruled that American Baptist may move to evict the remaining tenants at the end of the eighteen-month notice period.

N.J.S.A. 2A:18-61.1 to -61.12, generally referred to as the Anti-Eviction Act, provides substantial protections to a residential tenant. As long as the tenant continues to pay the rent and complies with obligations assumed in the lease, the tenant may not be evicted except for good cause as established by statute. 224 Jefferson Street Condominium Ass'n v. Paige, 346 N.J. Super. 379, 383 (App. Div.), certif. denied, 172 N.J. 179 (2002). Indeed, this court has observed that "[t]he effect of [the Anti-Eviction Act] is to create a perpetual tenancy, virtually a life interest, in favor of a tenant of residential premises covered by the ...


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