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Philogene v. CPR Holdings

February 24, 2009

KENNETH PHILOGENE, DOROTHY GUTENKAUF, ARNE AAKRE, ROWAND CLARK AND VAN WYCK BROOKS HISTORIC DISTRICT, INC., PLAINTIFFS-RESPONDENTS,
v.
CPR HOLDINGS, INC., DEFENDANT-APPELLANT, AND THE CITY OF PLAINFIELD AND THE CITY OF PLAINFIELD ZONING BOARD OF ADJUSTMENT, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Union County, L-4494-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 16, 2008

Before Judges Winkelstein, Fuentes and Gilroy.

Defendant CPR Lapid Holdings is the owner of a thirty-five-bed nursing facility located in a historic district in Plainfield. CPR applied to the Plainfield Zoning Board of Adjustment for a use variance, bulk variances and waivers, and for site plan approval, to expand the facility to a sixty-bed skilled nursing home. The Board granted the application subject to conditions. Plaintiffs, neighbors and members of the Plainfield Historic Preservation Commission (the Historic Commission), challenged the Board's decision in Superior Court, where the Law Division judge set the approval aside. We reverse the Law Division's order and reinstate the Board's approval.

I. Background

In May 2000, CPR applied for site plan approval, a use variance and bulk variances to expand a thirty-five-bed nursing home, which had been in operation since the 1950's, to a sixty-bed assisted-living facility with a skilled nursing home component. The proposed plan included expansion of the facility onto an adjacent vacant lot and additional parking. In April 2002, the Board denied the application, adopting a memorializing resolution in July 2002. CPR did not appeal.

Instead, in December 2002, CPR and residents of the nursing home sued the Board and the City in federal district court for violating the Federal Fair Housing Act of 1968 (FHAA), as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C.A. §§ 3601 to -3619. Macalalca v. Zoning Bd. of Adjustment of Plainfield, D.C.N.J. Docket No. 02-5897. The plaintiffs alleged in their complaint that the defendants denied them reasonable accommodations and the opportunity to reside "in the residence of their choice." They also alleged equal protection and due process violations under 42 U.S.C.A. § 1983, and sought declaratory and injunctive relief allowing expansion of the facility. The case was reported settled. Although a stipulation of settlement was prepared, it was never signed or filed. The judge entered a dismissal order on June 23, 2003, stating that the lawsuit could be reopened "if the settlement [was] not consummated" within ninety days. It does not appear that the parties took any further action in federal court. Nevertheless, as part of its settlement negotiations with CPR, the Board agreed to reopen CPR's application, and CPR agreed to amend its application by changing the use to a sixty-bed skilled nursing home without an assisted-living component.

II. Amended Application Hearings

The Board held nineteen hearings on the amended application from September 2003 through July 2005. Following are the facts that were presented during those hearings, as well as the Board's findings.

CPR's owners, Reynaldo Lapid and his wife, Maria, the Lapids, own Lots 4 and 6, in Block 760, as shown on the City's tax map (collectively, the property). Lot 6 has frontage on Central Avenue; Lot 4 fronts on West Eighth Street. The backs of the two lots abut and form an "L" around Lot 5, which is located at the corner of Central Avenue and West Eighth Street.

Lots 4 and 5 were subdivided in 1955. The Lapids purchased Lot 6 from Abbott Manor, Inc., in 1986, and Lot 4 from the estate of Mary Abbott in 2002. Neither Lot 5 nor the lot on the other side of Lot 6 had been available for purchase at either time. Plaintiff Philogene purchased Lot 5 from Abbott's estate in 2003. Philogene's property contains a 1950's two-family dwelling and a detached garage.

The nursing home, known as the Abbott Manor Convalescent Center, currently sits on Lot 6; it consists of an 8000-square foot historic Victorian brick mansion with an attached 1950's two-story framed addition at the rear, forming a "T." Lot 4 is vacant.

A nursing home has been operating continuously on Lot 6 since 1956. According to certificates of occupancy issued between 1955 and 1957, Abbott Manor's "structure" conformed to the zoning ordinances. The Board approved its use as a nursing home in 1958.

When the master plan was enacted in 1998, Plainfield contained eight historic districts, constituting ten to fifteen percent of its area. By 2005, nine historic districts existed, and a tenth was in the process of being created. According to the City planner, William Nierstedt, these districts brought economic investment to the City.

Of the nine districts, three were residential. The property is located in the Van Wyck Brooks Historic District (the VW District), which is the most architecturally diverse and largest historic residential district in the City. The VW District was certified as a local historic district in 1982, and was listed on the National and State Register of Historic Places in 1985.

Properties in the district are given one of three designations: (1) "contributing" - having "historic merit" and contributing to the historical character and official designation of the district; (2) "harmonizing" - "altered or a newer structure," but still having some historic merit; or (3) "non-contributing" - "a newer structure that results in disharmony in the district." Abbott Manor is designated as contributing. Four large non-contributing multi-family three- story apartment houses are located near the property; two of the larger ones are directly across Central Avenue from Abbott Manor. Diagonally across West Eighth Street from Lot 4 is a one-story harmonizing church with a three-story addition. Philogene's house on Lot 5 is also harmonizing. Diagonally across from Lot 5 is a multi-story, multi-family non-contributing brick apartment house. Nearby are older non-contributing single-family two-story brick and aluminum-clad homes on larger parcels, and some contributing single-family homes on larger parcels.

Before 2002, the property was in the R-4 VW zone, a low density multi-family residential zone that permitted nursing homes only as a conditional use. In December 2002, a new land use ordinance changed the R-4 zone, dividing the VW District into two zones: R-VWB1 and R-VWB2. The R-VWB1 zone permitted single-family homes. The R-VWB2 zone permitted one- and two-family homes, home-stay uses, guest houses and "bed and breakfast" inns. Neither zone contained conditional uses; three-story structures were prohibited, and lot size minimums were 40,000 square feet. The property is located in the R-VWB2 zone, which does not permit nursing homes, although they are permitted uses in other zones. The new ordinance also rendered the property undersized.

By 2000, Abbott Manor had fallen into technical obsolescence; residents using mobility aids such as wheelchairs or walkers could not pass each other in the narrow corridors, and some rooms were too small to allow proper patient care. The elevator in the addition had been taken out of use because it was not large enough for patients in wheelchairs or on stretchers. Of the fifteen residents who lived on the second floor, few were mobile without aids. Thus, employees carried residents up and down the stairs. One resident who lived on the second floor testified that, although he was generally mobile, he found it hard to traverse the old stairs.

In 2003, the facility was operating pursuant to a license with waivers issued by the New Jersey Department of Health and Senior Services (DHSS). The waivers were needed because the facility's "physical environment" was structurally unable to meet DHSS and National Fire Protection Association standards. Fire code deficiencies existed in the stairwells, exits, elevator shaft, light and ventilator shoots, and other vertical openings between floors. Robert Lapid testified that it would not be possible to bring the building into full compliance simply by making repairs to the existing building.

Mandatory construction standards for long-term care facilities require that renovations to a nursing home bring it into compliance with all codes. N.J.A.C. 8:39-31.1. Abbott Manor needed to be reconfigured and enlarged to meet the regulatory minimum floor requirements and all other requirements applicable to nursing homes. Consequently, CPR planned to spend $350,000 to restore and refurbish the mansion, using it for patient community and therapy rooms and administration. The plan also called for renovations to the exterior to make it look like a single-family residence, and demolition of the existing addition to build a new, larger addition for the patients' rooms. The addition would extend onto Lot 4, forming an "L" with the mansion. The expansion would increase the number of beds from thirty-five to sixty; a thirty-five-bed facility was no longer financially viable.

In its 2000 development application, which the Board had denied, CPR proposed expanding Abbott Manor to a combination sixty-bed assisted-living facility with a skilled nursing home component. In the 2003 application, CPR proposed a sixty-bed skilled nursing home, eliminating assisted-living beds. Because DHSS required smaller rooms for skilled nursing beds than rooms for assisted-living beds, CPR's revised plan was for a facility that would be smaller in size and would require fewer variances. Thus, although the planned "L" shape remained the same, the height slightly decreased; setbacks increased; building coverage was reduced from twenty-eight percent to twenty-four percent; an above-ground storm water detention basin was changed to an underground one with an added "storm ceptor device" for improving quality of any runoff; landscaping was added; and outside lights were modified to better shield their effects on the other lots.

The grading plan changed and many architectural changes were made, including the addition of a front porch and gazebo to bring the structure more in line with the residential neighborhood. Nonetheless, the number of parking spaces increased from eleven to twenty, which in turn increased impervious lot coverage.

The Board heard testimony about whether DHSS regulations required all nursing homes to have a minimum of sixty beds. CPR's authority to fill the additional beds was questioned because CPR did not have a certificate of need (CN) for sixty beds. David Kostinas, CPR's expert in health care regulatory matters, informed the Board that DHSS had historically encouraged nursing home providers to develop sixty-bed facilities.*fn1

As to certificates of need, which are valid for five years, the testimony was that Abbott Manor never had to apply for one because it had been operating with thirty-five beds before that state program was adopted in 1971. The state had not allowed construction of new nursing home beds since 1992, so the only way to either build or expand a nursing home was by having another licensed nursing home transfer some or all of its beds. CPR had contracted for the transfer of twenty-five beds from another nursing home to Abbott Manor; but that transfer would require a CN. DHSS had approved that transfer but CPR had not filed a CN application or its architectural plans with DHSS. Abbott Manor would require additional state approvals after construction but before operation.

The primary objections to the application centered on the size and scale of the proposed addition and the expanded use. The objectors claimed that the addition would change the character of the historic district and reduce property values. Neighbors and members of the Historic Commission objected to the addition's design, height, and footprint; the parking lot; and the additional ...


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