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Rocky Top, LLC v. City of South Amboy


September 11, 2012


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5068-06.

Per curiam.


Argued: March 28, 2012

Before Judges Axelrad, Sapp-Peterson and Ostrer.

Plaintiff Rocky Top, LLC appeals from summary judgment dismissal of its eleven-count complaint against the City of South Amboy (the City), the City's Mayor John T. O'Leary, Jr. (the Mayor), and the City's Zoning Board of Adjustment (Zoning Board), involving property plaintiff purchased within the City. The property had been the site of a hospital, Memorial Medical Center (MMC), which had operated as a pre-existing nonconforming use and closed in 1999. In 2000, the City investigated the site for redevelopment under the Local Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -49, and ultimately passed a resolution adopting a Redevelopment Plan, which included the property. Plaintiff alleged in its complaint that it encountered many roadblocks from the Mayor and City in seeking to lease the property for use as a pharmacy, a children's daycare center, an eldercare facility, and a drug and alcohol rehabilitation treatment facility, constituting violations of the following federal and state laws: the LRHL; the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163; the Fair Housing Act, N.J.S.A. 52:27D-301 to -329, and the federal Fair Housing Amendments Act of 1988 (collectively FHA), 42 U.S.C.A. §§ 3601 to 3631); the Americans With Disabilities Act (ADA), 42 U.S.C.A. §§ 12101 to 12213; the Rehabilitation Act of 1973 (Rehabilitation Act), 29 U.S.C.A. §§ 701 to 796; § 1981 of the federal Civil Rights Act (CRA); and constitutional guarantees of due process under § 1983 of the CRA. Plaintiff also challenged the Zoning Board's interpretation, affirmed by the trial court, that the proposed use of the property for a drug and alcohol treatment facility was not a permitted use under the Redevelopment Plan, and asserted procedural deficiencies. We affirm in part, and reverse and remand in part.


This case emanated from plaintiff's application to the City's zoning officer for zoning permits to allow certain uses within the property, which were initially issued but subsequently revoked. Plaintiff filed a complaint against the City in 2004 seeking to invalidate a payment in lieu of taxes agreement.*fn1 Plaintiff filed a first amended complaint in 2005, which added causes of action alleging wrongful conduct by the City and the Mayor, challenging the validity of the Redevelopment Plan and asserting damages under both state and federal statutes for alleged discriminatory and unconstitutional conduct. In 2006, pursuant to court orders, plaintiff, joined by plaintiff-intervenors, Endeavor House, Inc. (Endeavor House) and its affiliate Recovery Centers, LLC (Recovery Centers), tenants in the property, filed a second amended complaint.*fn2

By order of January 24, 2007, the court denied plaintiff-intervenors' motion for partial summary judgment without prejudice, and remanded the matter to the Zoning Board, finding it was an appeal of the zoning officer's initial decision regarding their proposed tenancy. Plaintiff-intervenors then filed an application with the Zoning Board for an interpretation pursuant to N.J.S.A. 40:55D-70(b). The application sought an interpretation that their proposed "residential drug and alcohol rehabilitation facility," which they viewed as "long term healthcare," would be considered a permitted use under the Redevelopment Plan that controlled the site.

Following a hearing on May 9, 2007, the Zoning Board held the proposed use was not permitted under the Redevelopment Plan. It issued a resolution memorializing its decision on June 13, 2007.

Meanwhile, plaintiff and plaintiff-intervenors filed their eleven-count third amended complaint alleging the following causes of action: declaratory judgment that its proposed uses were permitted (count one); LAD violations (count two); MLUL violations (count three); procedural due process violations (count four); ADA violations (count five); Rehabilitation Act violations (count six); § 1983 due process violations (count seven); FHA violations (count eight); CRA violations (count nine); inverse spot zoning (count ten); and seeking relief in lieu of prerogative writs to reverse the Zoning Board's decision (count eleven).

The court scheduled trial solely on the prerogative writs count of the complaint. By letter of July 8, 2008, plaintiff-intervenors advised the court they would withdraw from the litigation as to all counts other than the prerogative writs count (eleven). On September 18, 2008, the court heard argument on the issues raised by that count. On December 8, 2008, the court issued a written decision and order dismissing counts one (declaratory judgment that the proposed uses were permitted) and eleven of the third amended complaint with prejudice. Specifically, the court affirmed the Zoning Board's decision that Endeavor House's proposed use of the property was not a permissible use under the Redevelopment Plan. The court concluded: (1) the use was "more akin to a halfway house than a long-term care facility"; (2) if the [Redevelopment] Plan were "intended to permit a drug and alcohol treatment facility, the governing body would have so stipulated" since the conditions imposed by the ordinance delineating a B-2 zone where such use is conditionally permitted "differ significantly" from those at the subject property; and (3) the proposed accessory use was a mental care facility, which was expressly excluded in the Redevelopment Plan.

Plaintiff moved for reconsideration, and the court heard argument on the motion on January 23, 2009. The court denied the request as to count eleven and clarified its decision as to the first count, "leav[ing] the count in place" pending further discovery but limiting the relief requested to "[a]lternatively declaring that the Redevelopment Plan is null and void and its provisions [have] no force or effect in relation to the uses made of the Medical Center Property" and "[a]warding such other relief as the Court deems equitable and just." An order was entered on June 19, 2009, which also formalized the dismissal of the complaint as to plaintiff-intervenors.*fn3

By order of April 2, 2009, the court denied plaintiff's motion seeking its recusal. In July 2009, defendants moved for summary judgment to dismiss the balance of plaintiff's complaint, enclosing a statement of material facts and ninety-nine exhibits. Plaintiff filed a response to defendants' statement of material facts, a counter-statement of material facts, and a certification enclosing twenty-two exhibits. The City submitted a letter brief in reply. Oral argument on the summary judgment motion was presented over three days on September 18, October 7, and November 4, 2009.

In November 2009, plaintiff also filed a motion to compel testimony from Francis X. Gartland, the Mayor's business partner in Dynamic Claims Management (Dynamic). A consent order was entered on December 4, 2009, scheduling depositions of Gartland and of Noreen Petersen,*fn4 a Dynamic employee knowledgeable about its records, which were conducted in December.

On or about January 25, 2010, plaintiff filed a "Supplemental Counter-Statement of Material Facts," referencing and enclosing transcripts from the December 2009 Gartland and Petersen depositions, and from the earlier dates of Gartland's deposition, including one exhibit identified at one of those earlier dates. The court returned a "document" to plaintiff's counsel "unread by the court," noting the summary judgment motion had been argued over three days, those motions were "only pending decision and order," and the status did not require additional submissions. The next day, likely without having seen the judge's letter of the previous day, defense counsel wrote to the clerk's office seeking to strike plaintiff's supplemental papers.

On February 8, 2010, the court issued separate orders as to the Mayor and the City granting their summary judgment motions and dismissing the complaint in its entirety with prejudice, with identical findings of fact and conclusions of law appended to the orders. This appeal ensued.

On appeal, plaintiff argues the court erred in granting summary judgment dismissing each count of its complaint, contending significant discovery was incomplete and there were numerous material disputed facts, and challenging various of the court's factual and legal conclusions. Plaintiff also claims the trial judge erred in denying its motion for recusal. Defendants contend plaintiff failed to exhaust its administrative remedies and timely challenge the designation of the MMC property. We reverse and remand as to counts eleven and one (prerogative writs and declaratory judgment as to Endeavor House's proposed use), count two (standing to assert a LAD claim for economic loss of the Endeavor House lease) and count eight (plaintiff's standing to assert an FHA claim for economic loss of the Endeavor House lease). We affirm summary judgment dismissal as to the other counts of the complaint.


Plaintiff is a New Jersey limited liability company whose members are Andrew Piscatelli (Andy) and his son Andrew Piscatelli (Drew) (collectively, the Piscatellis).*fn5 The Piscatellis are also the principals of Highland Plaza, Inc. (Highland), a New Jersey corporation.

Prior to August l999, the MMC operated on the subject property, 540 Bordentown Avenue, designated on the City Map as Block 89, Lots 3, 4, and 5. The property was located in the "RA Residential Zone." It is undisputed the MMC's use of the property as an operating hospital enjoyed the status of a pre-existing nonconforming use. Prior to the hospital's closure, it provided a variety of services, including a substance abuse treatment center and a mental health clinic. It also contained a gift shop, a pharmacy, and a cafe, which were open to the public. Pursuant to zoning board approval, the MMC additionally contained two separate residences on its property, which in 2001 were used for office and administrative activities relating to the hospital.

The Mayor joined the MMC's Board of Directors in 1998 or 1999, when he was asked to assist in saving the hospital from closing. Despite the Mayor's efforts, the State licensure for the hospital was terminated and the hospital closed in 1999. In time, the MMC entered Chapter 11 bankruptcy proceedings, and efforts to sell the building began. The Mayor knew another entity, the Kelly Organization, had also expressed interest in acquiring the MMC site for medical arts and senior citizen assisted living uses before the Piscatellis inquired about the site. According to the Mayor, although the Kelly Organization was interested in purchasing the building, he had been supportive of the Piscatellis because they were more specific about their plans for a medical arts building on the site.

On October 4, 2000, the City Council adopted a resolution authorizing the Planning Board to investigate the MMC site to determine whether the site was in need of redevelopment under N.J.S.A. 40A:12A-6. On October 26, 2000, a Redevelopment Area Report was prepared by the City's Zoning Officer, Angelo J. Valetutto, P.P., of AJV Engineering, Inc., and amended on March 19, 2001. The planner concluded the property met the LRHL criteria for redevelopment. With notice before and afterwards, the Planning Board conducted a public hearing on November 20, 2000, and determined the property met the criteria and requisites for a Redevelopment Area. On December 20, 2000, the City Council enacted a resolution approving and adopting the report and recommendation of the Planning Board. With notice before and afterwards, the Planning Board adopted a resolution on April 25, 200l, recommending that City Council determine the property be designated as a Redevelopment Area. By resolution of May 2, 2001, the City Council designated the property as an "area in need of redevelopment."

On February 28, 2001, Highland executed an agreement to purchase the subject property through the Bankruptcy Court, which sale was approved by order of May 15, 2001. In March, Drew sent a letter to the South Amboy Redevelopment Agency acknowledging his understanding that the property was part of a Redevelopment Area and requesting the opportunity to present his plan for the facility's proposed use at the agency's April meeting.

Valetutto sent a written assurance to the Piscatellis on May 8, 2001, that the "use of the . . . property as a hospital use enjoyed a pre-existing, non-conforming use status. The proposed use represents a similar use that will enjoy the same pre-existing, non-conforming use status." On June 15, 2001, Drew wrote to Valetutto:

As you know, I am a principal of Rocky Top LLC ("Purchaser"). In that regard, this letter serves to confirm our recent discussions concerning the above-captioned property ("Property"). Specifically, your office and the City of South Amboy have confirmed that the following uses ("Intended Uses") constitute legal pre-existing nonconforming uses pursuant to N.J.S.A. 40:55D-68 with respect to the above referenced Property: 1 Urgent and ambulatory emergency services 2 Physical and occupational therapy 3 Daycare (Adult/senior[)] 4 Meals on wheels 5 Long term health care 6 Physician and general offices 7 Retail (gift shop) 8Imaging 9 Lab work and research 10 Nursing instruction 11 Outpatient surgery 12 Outpatient services -- clinical 13 Outpatient counseling 14 Social work and services 15 Mental health clinic 16 Birthing unit operations and services 17 Dialysis clinic 18 Hospice care 19 Heliport 20 Cardiopulmonary unit 21 Dental care 22 Endoscopy and 23 Ambulance station

As you know, Purchaser is scheduled to acquire the Property in the coming weeks. Upon acquisition of the Property, Purchaser intends to use the Property for the Intended Uses, as described above in this letter except for a Mental Health Clinic, Birthing Unit, and a Heliport. Based on our recent discussions, it is our understanding that Purchaser need not procure any approvals or permits from the City of South Amboy as a prerequisite to operating the Property for the Intended Uses. Specifically, without limitation, no site plan approval and/or variances are required.

Please acknowledge the foregoing by signing below where indicated.

Valetutto signed the letter, confirming that the intended uses with the exception of a mental health clinic, birthing unit, and heliport, as described in the letter, and the structures with respect to the property constituted pre-existing nonconforming uses, and no approvals or other permits from the City were required as a prerequisite to operating the property for the intended uses.

On July 13, 2001, Highland assigned its interest in the MMC property to plaintiff. By way of deed of that date, plaintiff agreed that the conveyance was expressly subject to a restrictive covenant running with the land that the Grantee, its successors and assigns, would "not use the premises or any portion thereof as an abortion clinic nor as a clinic for the treatment of mental health."

On July 15, 2002, Valetutto prepared the MMC Redevelopment Plan. The Redevelopment Plan listed the project goals as to construct a development to provide a multitude of essential medical services for the citizens of South Amboy and the surrounding area that were eliminated by the closing of the Memorial Hospital. The vacant portion of the redevelopment area should be constructed to complement existing surrounding uses. The Memorial Medical Center redevelopment plan is based upon the following objectives, which are consistent with the goals of the City of South Amboy Master Plan and the findings of the City of South Amboy Planning Board.

1. To develop the redevelopment area in a manner which will not place a burden on the municipal services, such as the school system, police, fire, solid waste disposal and sanitary sewage treatment.

2. To develop the redevelopment area in a manner which respects the topographical features of the site.

3. To maximize the leveraging of public and private funds to accomplish comprehensive development of the redevelopment area.

4. To improve the functional and physical layout of the redevelopment area.

5. To minimize any disruption or inconvenience to any of the residents within the vicinity of the redevelopment area.

6. To provide adequate medical facilities and services in order to maintain and improve the quality of life for existing and future city residents.

The proposed land use plan for the subject property was for a "Medical Arts Center."*fn6 The specified permitted uses for the property were the twenty-three items listed in Drew's letter and medical business offices. It is undisputed the list of permitted uses contained within the Redevelopment Plan were undefined.

On July 24, 2002, the Planning Board adopted a resolution approving the Redevelopment Plan and recommending it for adoption by the City Council. On August 15, 2002, the Planning Board adopted an amended resolution recommending the approval of the Redevelopment Plan by the City Council with the deletion of "mental health clinic" as a permitted use.

On August 15, 2002, Valetutto prepared an amended Redevelopment Plan, reiterating the earlier version in its entirety with the exception of the deletion of the phrase "mental health clinic" from the list of permitted uses.

On September 18, 2002, the City Council adopted Ordinance #19-02, approving the Redevelopment Plan as it applied to the MMC property only, and not the residential area. The ordinance, however, which is ambiguously drafted, only mentions Valetutto's July 15, 2002 Redevelopment Plan, stating it is approved and adopted as "modified" to only include the MMC property. It then directs an amendment of the zoning map with reference to the MMC Redevelopment Plan, "as modified, and as it relates to Block 89, Lots 3, 4 and 5, only." There is nothing in the ordinance to suggest disapproval of the August 15, 2002 amended Redevelopment Plan, thus the use of the earlier date was most likely inadvertent.

A. South Amboy Eldercare (Eldercare)

On or about September 2, 2003, Drew submitted an application for a zoning permit for Eldercare. The application listed the proposed uses as short-term elder care, which was "Occupational/physical therapy." Valetutto approved the permit application on September 10, specifying he granted approval for "approximately 15,000 sf of short term elder care on the 3rd floor, within limits of the existing building footprint. Use is permitted by the Memorial Hospital Redevelopment Plan." Pursuant to meetings and correspondence between Eldercare's Director Debra Witkowski, Drew, Valetutto, and the City Construction Official Thomas Kelly, respecting the services Eldercare intended to provide and the potential necessity of State licensing, Drew submitted another application for a zoning permit on or about August 16, 2004 on behalf of Witkowski. The application listed the proposed uses as "Hospice/social work and services." On August l7, Valetutto approved this application, with the following explanation: "Approval for use as hospice care, including counseling, social work and services, with stays of approximately twenty-five days or less, as defined by the appropriate State agency."

By letter dated October 6, 2004, Valetutto rescinded both permits for Eldercare, noting his approvals were based on the stated use of "hospice care," which is a permitted use in the MMC Redevelopment Area, but there was "conflicting and confusing information" and "continued confusion as to the exact proposed use" by Eldercare. He requested Drew provide a letter from the appropriate State agency "with regard to either the licensure of the proposed use or that it is a strict adherence to the hospice care use listed in the Redevelopment Plan." In depositions Valetutto stated it was Kelly who expressed the confusion and asked he reconsider the zoning permits, although Kelly did not have any authority with respect to that decision. Neither Drew nor Witkowski filed any formal appeal of the denial of the zoning permits.

B. United Drugs, Inc. (United Drugs)

On or about September 21, 2003, Tochukwu Enemuo, an African American, who had recently signed a lease with plaintiff through the Piscatellis' management company, Hillcrest Development and Management Corp. (Hillcrest), to open a United Drugs pharmacy at the subject property, submitted a zoning application to Valetutto. On October 3, 2003, the permit to operate a 975 square foot pharmacy was approved. However, Valetutto later discovered the pharmacy was to have a retail component, and by letter of December 10, 2004, he advised Enemuo:

The proposed use as a pharmacy within the Redevelopment Plan is only permitted as support for the on-site medical uses. As a pharmacy you would be permitted to provide prescription and non-prescription drugs for the medical uses on-site. The on-site medical uses are those approved tenants within the building. As a pharmacy you are not permitted any sales to the outside public. Such an [sic] use would be a retail use, and not permitted by the Redevelopment Plan.

I trust this letter is sufficient to delineate the approved use of a pharmacy at this location. Please feel free to contact me should you require any further detail or discussion.

Enemuo never opened the pharmacy. No one filed an appeal of Valetutto's interpretation to the Zoning Board. On May 31, 2005, Enemuo and plaintiff entered into a lease termination agreement.

Drew stated the following in depositions respecting his claim of animus and discrimination by the Mayor. Around the time of Enemuo's lease, Drew was also soliciting Dr. Jorge Gonzalez, a medical supply vendor with a store in the central business district of town, to relocate his store to the MMC. According to Drew, in late fall 2004, the Mayor telephoned him and angrily stated: "I'm not going to have 'our Dr. Hor-Hay [phonetic for Jorge Gonzalez]' or some African come into town and open a business that may detract from" two named family businesses operating in the City who were "pillars of the community" and who Drew described as "non-minorities." In his deposition, the Mayor denied making that statement or any statement regarding the racial makeup of tenants at the MMC, denied having any involvement in the permit process, and claimed he had never heard of Enemuo until he read the pleadings in this litigation.

C. Krutansky Children Daycare Center

On April 15, 2004, Gregory Krutansky, who had apparently signed a lease with Hillcrest, submitted a zoning permit application to operate a "child daycare/medical daycare" facility as a principal use of the leased space. Valetutto denied the application as child daycare was not a permitted use for the Redevelopment Area. No one filed an appeal.

D. Endeavor House

On August 15, 2004, Drew submitted an application for a zoning permit to Valetutto on behalf of a prospective tenant, Rosemary Sherman, to operate a licensed healthcare facility. The cover letter stated the premises would be used to operate a "Licensed Health Care Facility specializing in rehabilitative services." Three tiers of service were anticipated, "beginning with in-patient care which comes immediately after debilitation, with stays ranging from one to eight weeks (depending on the nature and array of physical ailments), followed by two additional tiers of outpatient care." The letter further stated that "a host of other support services will be offered" as required by the Department of Health and Senior Services (DHSS) for "this type of Health Care Facility." On August 17, 2004, Valetutto approved the application, noting, "Approval for rehabilitative services as certified by the State of New Jersey Department of Community Affairs (NJ Department of Health & Senior Services)."

On October 1, 2004, Endeavor House signed a ten-year lease with plaintiff through Hillcrest for 20,000 square feet of space in the subject property. The lease provided that the use of the space was "solely for the purpose of conducting an Inpatient and Outpatient Rehabilitation Facility for outpatient and residential treatment for drug and alcohol rehabilitation and related activities." According to the lease, the tenant would not operate a "mental health facility," noting the MMC site and the City had an agreement forbidding that use.

The applicant provided additional information to Valetutto, after which he responded by letter of November 4, 2004, advising that while Recovery Center was licensed by the State "to operate a twenty bed Residential Health Care Facility for the period of 3/1/04 to 2/28/05," the use was not permitted in the MMC Redevelopment Area. He explained:

[Your] proposal is to provide a variety of services, primarily as a "transition" for people recovering from substance abuse to return to a "work environment." The halfway house places emphasis on the "development of a responsible lifestyle" and a "sober network" including AA/NA. Other listed topics, such as "Self Awareness and Living Skills", "Family Therapy", "Recreation Therapy", and "Relapse Prevention" are clearly not uses provided for in the approved Memorial Medical Center Redevelopment Plan.

Endeavor House, which had joined in the June 2004 lawsuit as plaintiff-intervenors in September 2006, sought review and interpretation of the permitted uses for the MMC site, and the matter was ultimately heard by the Zoning Board pursuant to court order. At the May 9, 2007 Zoning Board hearing, Sherman, its president, described Endeavor House's work. She explained that Endeavor House operated a fifteen-bed long-term residential facility in Keyport, New Jersey, licensed by DHS' Division of Addiction. She presented the license that had been issued for the Keyport facility "pursuant to N.J.S.A. 26:2H-1 [to -26], for operation of a "RESIDENTIAL SUBSTANCE ABUSE TREATMENT FACILITY," consisting of "16 Adult-Long Term Beds."

Sherman described Endeavor House as "a small private health care facility" that provided "counseling and medical treatment for drug and alcohol rehabilitation." Providing twenty-four hour supervision, the staff included three medical doctors, about six nurses, and social workers who were certified in alcohol and drug treatment. Doctors were not present throughout the night, but a doctor would be on-site for several hours every day. Patients underwent a three-phase program, beginning with a very structured program of "six to eight hours of direct clinical [treatment] per day," including individual sessions, workshops, nutritional counseling, and learning non-chemical coping skills. Phase one was strictly residential; patients could only leave accompanied by a staff member. In phase two, lasting six to eight weeks, patients would have three to four hours of daily in-residence treatment, but they could be released to go to work if approved by the doctor. The last phase was an outpatient program, with group and individual counseling three to four times per week, for three hours. The entire program could last from thirty to forty-five days up to a year. On average, patients received treatment for sixty days, and between fifty and sixty percent of the facility's patients received exclusively outpatient care.

Patients were generally referred by physicians, with staff screening and a doctor deciding whether to admit the patient. These steps all occurred during regular business hours; there were no emergency or crisis admissions and all admissions were voluntary. Furthermore, the patients were all self-pay or insurance clients and no indigent, Medicaid, or Medicare patients were accepted, so most were employed. The inpatient program would cost about $15,000 per month. The facility had treatment contracts with police and fire departments and Fortune 500 companies. Sherman reported that the Keyport facility was in a residential neighborhood with all single-family homes, and in the prior two years it had not had any complaints or issues from its neighbors. Sherman had sold the Keyport facility and entered into the subject lease to operate a similar facility with up to forty beds.

Recovery Centers operated the same type of facility in a neighborhood of single-family residences with a school across the street in a twenty-bed center in Aberdeen, with the same type of staffing, patients, and treatment program. Sherman similarly reported that the facility had no complaints or issues in the prior two years.

Sherman explained that Endeavor House did not treat and did not intend to treat mentally*fn7 ill chemically addicted (MICA) patients at the subject property. She noted that the MMC had treated patients for both mental conditions and for substance abuse.

On cross-examination, Sherman confirmed that the doctors on staff at Endeavor House specialized in internal medicine, psychiatry, or addiction medicine. She explained that the doctors "treat people who might be suffering from a secondary diagnosis such as anxiety, situational infractions." She disagreed with characterizing this to mean patients with mental illness, explaining: "The direct result of their substance abuse, it is situational depression as opposed to mental illness where it would be chronic, long term, debilitating." She added: "I classify them as a secondary illness of depression, substance abuse, anxiety, that type of situation." Sherman acknowledged she had a business, not a medical background.

Sherman further explained that patients were not admitted to Endeavor House until they had already gone through a detoxification period or process, so no one was admitted until he or she was drug-free and alcohol-free, and patients were thoroughly searched to be sure that they did not enter the facility with those substances. The patient might still experience physical sensations following the detoxification, so a doctor might prescribe "not methadone, but maybe Librium or high blood pressure medication, something like that. Maybe something to sleep for the first few days." Sherman represented that the proposed facility would not accept someone on methadone.

The facility would also not accept a patient with a diagnosis of schizophrenia. A person with "a real strong suicide problem" would not be accepted for treatment and a person who demonstrated suicidal tendencies would never be kept in treatment. Sherman further represented that a person would not be admitted if he or she had engaged in a violent crime, and the residential manager would apprehend any person who was violent or causing a disruption.

In her seventeen years of experience with this type of residential facility, Sherman had not observed problems with people "escaping" or running out of the facility. Because Endeavor House was a voluntary program, patients could sign themselves out and the staff could not restrain them. However, they would know about intended departures and would be able to alert family members to pick up the patient and his or her possessions.

Theresa Messineo was a licensed clinical social worker who had worked for Endeavor House for five-and-a-half years as its clinical supervisor. She was responsible for supervising and training the clinical staff. She confirmed that Endeavor House did not accept patients with a primary diagnosis of mental illness. Screening occurred, usually first in a telephone interview with the prospective patient and with a family member, and, if possible, a treating physician or counselor. If the screening showed anything including violence, suicidal, or homicidal propensities, or a level of dangerousness or mental illness, the patient would not be admitted. After the initial screening, the patient and a family member would be subject to an on-site interview with a counselor, a nurse, and a doctor for a comprehensive evaluation. She explained that the doctors at Endeavor House were psychiatrists because those "are the people who treat substance abuse disorders."

Messineo concurred with Sherman's view that substance abuse is not a mental illness. She explained that substance abuse disorders were "filed separately from mental illnesses" under The International Classification of Diseases (TICD), an international standard of classifications. Messineo testified that substance abuse disorders arise when persons "are physically and psychologically dependent on a certain substance, alcohol, prescription medication or other drugs, and they continue to use. They are not able to stop using on their own. They continue to use despite negative consequences in their life." She did not know of any professional organizations or professional schools of thought that would consider substance abuse a mental illness.

Messineo explained that persons admitted to Endeavor House might have a secondary diagnosis of depression or anxiety, but that was not the reason for their treatment at the facility. Only about fifteen percent of Endeavor House patients had such a secondary diagnosis. As Messineo explained, a person with a terminal illness such as cancer might have a secondary diagnosis of depression or anxiety. In those instances, the whole person would be treated but the secondary diagnosis would not be the main focus of the treatment. If mental symptoms were mild and the result of substance abuse, then Endeavor House would treat that person. If the person experienced severe mood swings, or a history of violence, suicide, or homicide, or the person had lost touch with reality, that would be identified in the screening process and the person would be rejected for the Endeavor House program. If the person primarily suffered from depression or another mental illness, which caused the person to develop the drug or alcohol problem, then that person would not be accepted into Endeavor House, because the mental illness would be the primary diagnosis.

During their first phase of treatment, residential patients could not leave the facility unless accompanied by an approved family member or other screened person. During phase two, the person could leave unaccompanied, but only to go to and from work. Messineo was not aware of any incidences of violence occurring at Endeavor House. She knew of rare cases when a person spoke about doing harm to himself or herself, and in those cases the person was transferred to a hospital.

Licensed professional planner Meghan Hunsher testified as Endeavor House's planning expert. She had been involved in preparing draft redevelopment plans and reports in support of designating an area as in need of redevelopment. She had reviewed the MMC Redevelopment Plan and she opined that the Endeavor House proposals were consistent with the plan's goals and with the permitted uses under that plan, "most saliently the long term care as well as the social work services" and also by providing for medical services on the site. She understood that substance abuse treatment services had been offered at the hospital prior to 2000, so this would continue similar types of services, except that Endeavor House would not offer treatment for patients with primary mental illness diagnoses, which had previously been provided by the hospital.

Hunsher read from the permitted uses under section 7 of the Redevelopment Plan, noting that Endeavor House's state licensure for "long term care assistance and outcare social work" were within those listed permitted uses. Hunsher observed that the plan had not defined its terms, so she referred to the "Book of Definitions," a "standard reference for planners." That book defined "long term care facilities" as "an institution or part of an institution that is licensed or approved to provide health care under medical supervision for 24 or more consecutive hours to two or more patients." In Hunsher's view, "the substance of the permitted uses in this area is medical, and the substance of the proposed use through Endeavor House is medical." In differentiating substance abuse treatment from mental illness, she stressed that "there are standard definitions out there in the medical community that treat diagnoses differently." Moreover, "there is no perceivable difference, this is key, between patients entering and exiting the facility, or who are within the facility, and any other patient receiving care." She felt this conformed to the comments in William Cox's treatise on land use that focused on "compatibility of uses within the area, within zones."

Recognizing concerns about whether Endeavor House would operate like a mental health clinic, Hunsher stressed that the distinction was Endeavor House's strict screening process, which would exclude MICA patients. Similarly, Endeavor House was different from a "low intensive halfway house" because this facility would be a "monitored environment," as testified to by Sherman.

Hunsher emphasized that the Redevelopment Plan allowed social work services as a permitted use. She urged that a social worker in private practice also might treat persons with addiction problems.

Hunsher acknowledged that the City's commercial zone did permit alcohol and/or drug abuse centers conditionally, but she noted that residential facilities were prohibited. She agreed that the drafting of the Redevelopment Plan could have more specifically included "alcohol and drug rehabilitation centers" among the permitted uses list. Nonetheless, Hunsher opined that Endeavor House was a medical use and qualified as a long term care facility with social service work and outpatient care services.

Valetutto, who had served as the City's planner and zoning officer since October 1999, had been involved in fifteen to eighteen redevelopment studies, and had prepared about twelve redevelopment plans, also testified at the hearing. He stated that Drew was well aware of the mental health clinic exclusion as they had discussed the specific permitted uses prior to Valetutto's submission of the August 15, 2002 Redevelopment Plan and referenced the Planning Board's resolution recommending approval of the plan "with the deletion of the mental health clinic" reference.

Valetutto opined that "pre-existing [use status] would be lost by virtue of the designation as a redevelopment area, and then the uses would be based on what the redevelopment plan approves as part of its adoption by the Council as a municipal ordinance." Valetutto testified that he was part of the entire process of the Planning Board and its recommendation to Council and the Planning Board never considered allowing a drug and alcohol abuse treatment center or clinic facility within the property. He claimed Board members were "adamant against" permitting such a facility in this particular redevelopment zone, and for that reason, one was not included as part of the Redevelopment Plan.

Valetutto further noted that, "within the context of our existing zoning, there are very strict requirements for that type of use, and this did not meet any of them." He elaborated by referring to the 1981 ordinances that set out design and performance standards for drug or alcohol abuse treatment centers. He testified that he would have included those standards in the Redevelopment Plan if those uses were anticipated in that zone.

Added in 1981, Ordinance § 53-79(A)(2), "Alcoholic and/or narcotic and/or drug abuse treatment center," contains twenty-two subsections. Subsection (c) specifies: "Any residential facilities, including staff or clients, which includes any alcoholic and/or drugs and/or narcotic abuse treatment center which, as part of its treatment requirement and/or process, includes or suggests that a patient physically reside on or near the center premises, shall be prohibited." The other subsections cover such requirements as licensing certifications, staffing, prohibition on operations by convicted criminals, construction requirements, trash and parking requirements, traffic study, anticipated number of patient visits, and hours of operation. In addition, subsection (r) specifies: "The center shall be a freestanding facility, with no other principal use on the lot or structure under consideration."

Ordinance § 53-94, B-2 Highway Commercial Zone, under subsection (C)(3), permits as a conditional use "Alcoholic and/or narcotic and/or drug abuse treatment centers." Presumably, in the B-2 zone that use must occur in a "free standing facility."

Valetutto also testified that he approved Sherman's permit application for a "licensed health care facility," noting that neither Drew's cover letter nor the application mentioned an intent to operate an alcohol or drug rehabilitation treatment center. However, when Valetutto learned otherwise, he concluded the facility did not meet the standards of the MMC Redevelopment Plan and rescinded the approval.

On cross-examination, Valetutto conceded that the Planning Board and Council had never set forth in writing any intention to particularly prohibit drug and alcohol centers in the Redevelopment Plan. He also acknowledged that part of his decision to rescind was the belief that Endeavor House was a halfway house.

No members of the public spoke. The Zoning Board members unanimously voted that the proposed use was not permitted in the Redevelopment Area. The Zoning Board set out its findings and conclusions in a resolution dated June 13, 2007. The Board accepted the testimony of all the witnesses and incorporated it into its findings of fact, including that Endeavor House was a "licensed accredited health care facility" that was "presently licensed as a long-term residential facility" by the State and Recovery Centers is licensed by the "New Jersey Department of Health and Senior Services, Long Term Care Systems." The Board also specifically accepted Valetutto's testimony.

The Board concluded:

It is the interpretation of this Board that the proposed use is not permitted under the Memorial Medical Center redevelopment plan of the underlying zoning. The Board does not find the use of drug and alcohol treatment facility, with treatment of secondary treatment of mental illness to be consistent with the Redevelopment Plan as submitted by the Planning Board and approved by the City Council. This is especially true in light of the amendment to the proposed redevelopment plan, which amendment specifically excluded "mental health treatment facility" from approved uses. The fact that the Planning Board and council specifically listed those uses which would be permitted in the redevelopment zone, and did not include the use proposed by Endeavor House, is further evidence that the proposed use is inconsistent with the redevelopment plan. There is no application before this Board for variance of the underlying RA residential zoning.

In the December 8, 2008 decision and order, the court noted that the issue involved an interpretation of a zoning ordinance, so it would construe the ordinance de novo though with deference to the municipality's informed interpretation. The judge cited Sherman's testimony that patients admitted to Endeavor House are "referred with a primary diagnosis of substance abuse (alcoholism); with a secondary diagnosis of mental anxiety disorders," noting she described the secondary condition as "situational depression" as opposed to "mental illness."

The judge was not satisfied the State license for Endeavor House's Keyport facility was adequate proof that its intended use at the subject property was a long-term care facility as permitted under the Redevelopment Plan. Lacking a definition in the plan, the court looked at N.J.S.A. 26:2H-2(n), in which the Legislature defined "private long-term health care facility" as "a nursing home, skilled nursing home or intermediate care facility," and DHSS administrative rule, N.J.A.C. 8:39-1.1(a), which stated: "This chapter contains rules and standards intended to assure the high quality of care delivered in long-term care facilities, commonly known as nursing homes, throughout New Jersey." The judge thus concluded that the common meaning of "long-term care facility" was a "nursing home or the like." He determined that Endeavor House was "more akin to a halfway house than a long-term care facility."

The judge also highlighted that the alcohol and drug abuse treatment centers permitted under Ordinance § 53-79(A)(2) as a conditional use in the B-2 zone were required to be in a free-standing facility with no other principal use or structure on the lot and that the Endeavor House proposal would have needed a variance under that zoning. Though recognizing the subject property was not in the B-2 zone, but given those standards, the court concluded "that if the Plan is intended to permit a drug and alcohol treatment facility, the governing body would have so stipulated since the conditions imposed by section 53-79(A)(2) differ significantly from those existing at the subject Property."

Further reasoning that the Ordinance adopting the Redevelopment Plan created an overlay zone, adding to the existing requirements of the RA zone, the court concluded that a "drug and alcohol treatment facility is not a permitted use in the RA zone, nor is it permitted under the Plan."

The court additionally found Endeavor House's "proposed accessory use is a mental care facility," explaining:

It provides psychiatric care and treatment through two (2) psychiatrists on staff; they also provide resident and non-resident mental health counseling through licensed social workers who are also on staff. The court need not look any further than the Plan itself to conclude that a mental health facility is not a permitted use. The Planning Board clearly recommended, and the governing body adopted, a plan that specifically excluded mental health facilities from [the] Plan. The Plaintiffs' accessory use is also not permitted.

The court then ordered that counts one and eleven of the complaint be dismissed with prejudice.

In July 2009, defendants filed a summary judgment motion to dismiss the remaining counts of the complaint. Following lengthy oral argument, intervening depositions and related proceedings, the court issued orders of February 8, 2010, dismissing the complaint in its entirety with prejudice as to both the City and the Mayor, for reasons set forth in the appended identical findings of fact and conclusions of law. This appeal ensued.


On appeal, plaintiff argues:



A. Summary Judgment was Improper Because There are Countless Material Facts in Dispute.

B. Summary Judgment was Improper Because Discovery was Incomplete at the Time the Summary Judgment Motions were Heard. POINT II



A. The LRHL, Relating Both to Due Process and to the Substantive Requirements for a Blight Finding, Was Violated.

(i) The redevelopment study was improperly prepared.

(ii) The redevelopment study by Valetutto made determinations under the LRHL, which Valetutto retracted in every respect during depositions.

(iii) Rocky Top had no notice of critical hearings determining the uses to be made of their property.

(iv) South Amboy actively misled Rocky Top about the redevelopment status of the MMC to its detrimental reliance.

(v) No required redeveloper agreement was ever entered into by Rocky Top.

(vi) Rocky Top enjoys pre-existing uses which have been wrongfully denied by South Amboy and are not vitiated by the LRHL, even if properly observed.

(vii) South Amboy apparently enacted into law the wrong redevelopment plan and one which explicitly permits a "mental health clinic" at the MMC.

B. There is no obligation for Rocky Top to have exhausted administrative remedies before seeking a declaratory judgment holding any alleged redevelopment plan void.

C. It is unclear as a matter of law whether appeal of a zoning permit decision in an alleged redevelopment zone lies with the Zoning Board of Adjustment.

D. A

declaratory judgment action is a proper means of seeking a determination of the rights of the parties under an ordinance.



A. There are LAD Violations regarding Tochukwu Enemuo.

B. There are LAD Violations as to Endeavor House.

C. Rocky Top Has Standing To Proceed. POINT IV




A. As to Endeavor House

B. As to South Amboy Eldercare









A. Rocky Top Has Standing.

B. The MMC qualifies as a "dwelling" even though it is commercial in nature.

C. South Amboy has banned anywhere in the city residences for handicapped persons in violation of the FHAA.







A. The Determination of the South Amboy Zoning Board of Adjustment, and the Trial Court, was Contrary to Law, Clearly Erroneous, and Should be Reversed.

B. The Board's and trial court's finding that Endeavor House is actually a forbidden "mental health clinic" is clearly erroneous and unsupported by the record below.

C. Drug and alcohol rehabilitation is an accessory use to a permitted use.



Plaintiff first argues the trial court made two significant preliminary errors -- granting summary judgment while significant incomplete discovery remained and failing to acknowledge any of the significant factual disputes. According to plaintiff, hundreds of materially disputed items were identified in its summary judgment opposition. It also claims the City's statement of material facts demonstrated the discrepancies as well by referencing different deposition testimony statements.

The Supreme Court has established that a determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.

[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).]

Rule 4:46-2(c) sets forth the summary judgment standard:

The judgment or order sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact.

Our review of a trial court's grant of summary judgment is de novo, using the Brill standard employed by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). That is, we consider whether there are any material factual disputes and, if not, whether the facts viewed in the light most favorable to the non-moving party would permit a decision in that party's favor on the underlying issue. Brill, supra, 142 N.J. at 540.

We disagree with plaintiff that this is a free-standing error warranting reversal of summary judgment. If disputed facts are relevant to the substantive claims set forth in the complaint, we will address them as relevant to the specific issues.

Plaintiff next contends the court erred in denying its requested adjournment of the summary judgment motion until after depositions of Gartland and Petersen could be taken. Plaintiff sought the additional discovery to further explore the Mayor's own use of the subject property to conduct his private insurance business, allegedly without any permit and with Valetutto's acquiescence. The court had entered a consent order on December 4, 2009, to provide for those depositions, scheduled days after oral argument on the motions, but then refused to consider plaintiff's supplemental counter-statement of material facts that incorporated facts from those depositions.

We are not persuaded by plaintiff's assertion of error. As we stated in Kaczorowska v. National Envelope Corp., 342 N.J. Super. 580, 591 (App. Div. 2001):

When the incompleteness of discovery is raised as a defense to a motion for summary judgment, that party must establish that there is a likelihood that further discovery would supply the necessary information. J. Josephson, Inc. v. Crum & Forster Ins. Co., 293 N.J. Super. 170, 204 (App. Div. 1996) (citing Auster v. Kinoian, 153 N.J. Super. 52, 56 (App. Div. 1977) (providing that where there has been a reasonable opportunity for discovery, the "plaintiff has an obligation to demonstrate with some degree of particularity the likelihood that further discovery will supply the missing elements of the cause of action")).

Although plaintiff asserts a desire to have Gartland's deposition testimony before the court to demonstrate the Mayor's alleged business interests in the subject property, it fails to demonstrate how additional proofs on that point would have made any count of the complaint less appropriate for summary judgment dismissal. Accordingly, the court's summary judgment order need not have been delayed to allow introduction of this additional discovery.

In Points II through XII, plaintiff challenges the court's grant of summary judgment as to each of the counts of its complaint. We first address count one, which sought declaratory judgment that defendants improperly denied it permits under the "purported Redevelopment Plan," because the uses were valid under that plan or, alternatively, that the plan was null and void as improperly enacted. The relief sought by plaintiff included: (a) declaring that the proposed uses, including the Endeavor House proposal, were permitted uses for the subject property; (b) ordering South Amboy to issue all necessary permits, approvals and certificates of occupancy for Endeavor House, and for other current tenants whose permits, approvals and certificates of occupancy were improperly denied or revoked by the City; (c) alternatively, declaring that the Redevelopment Plan is null and void and inapplicable to uses on the site;

(d) awarding compensatory, incidental, and punitive damages;

(e) awarding attorney's fees and costs; and (f) awarding such other relief as the Court deems equitable and just.

Preliminarily, the City contends plaintiff's appeal was properly dismissed because plaintiff failed to exhaust its administrative remedies by failing to administratively appeal the permit denials of Endeavor House, Eldercare, United Drug, and Krutansky Daycare. Defendants additionally contend the matter involved none of the four circumstances that allow for waiver. Plaintiff argues that the exhaustion doctrine is inapplicable because this matter involves only legal interpretation and not administrative expertise, and the City had made it clear it would not review the issues plaintiff raised.

Rule 4:69-5 requires a litigant in plaintiff's position to exhaust local administrative remedies before filing an action in the Superior Court unless "it is manifest that the interest of justice requires otherwise[.]" "'[T]he preference for exhaustion of administrative remedies is one of convenience, not an indispensable pre-condition' except where the agency has exclusive primary jurisdiction." Rumana v. Cnty. of Passaic, 397 N.J. Super. 157, 173-74 (App. Div. 2007) (alteration in original) (quoting Abbott v. Burke, 100 N.J. 269, 297 (1985)). The rule "is neither jurisdictional nor absolute." Rumana, supra, 397 N.J. Super. at 174 (quoting Swede v. City of Clifton, 22 N.J. 303, 315 (1956)). The reviewing court may relax the requirement, and must determine "whether exhaustion will serve the interests of justice." Rumana, supra, 397 N.J. Super. at 174. Relaxation might be particularly appropriate "where the administrative remedies would be futile or illusory. Furthermore, where the issue is a question of law and the application of administrative expertise is not required, the interests of justice and expediency negate the requirement of exhaustion." Ibid. (internal citation omitted).

We are satisfied the present circumstances are appropriate for relaxation of the exhaustion rule because the exhaustion of such administrative remedies would be futile. It appears that in many of the instances the City declined to address or review the questions raised after Valetutto denied the requested permits. Moreover, these questions are primarily legal questions that the reviewing court can consider without the need for additional agency input by the redevelopment agency or Zoning Board.

Plaintiff argues the court erred in failing to find the LRHL was violated both substantively and procedurally in adopting the Redevelopment Plan. Plaintiff contends Valetutto improperly prepared the redevelopment study, making statements purporting to support findings that comported with the LRHL when he knew the facts did not support those findings. Additionally, plaintiff contends the findings could not have met the Gallenthin standards*fn8 in defining a "blighted" property. Plaintiff further challenges the lack of individualized notice of the critical hearings regarding the redevelopment designation. It also contends that, even on written inquiry, the City did not confirm the existence of a Redevelopment Area or Plan, instead confirming the pre-existing, nonconforming use status of the hospital uses of the site. Plaintiff also emphasizes that the City never executed a redeveloper agreement with plaintiff or anyone else regarding the site. Plaintiff further asserts that the City, likely erroneously, enacted into law the Redevelopment Plan that explicitly permits a "mental health clinic" on the site.

The trial judge was persuaded by defendants' argument that plaintiff's challenges to the Redevelopment Plan relative to the uses proposed at the MMC were time-barred. The judge noted that City Council adopted its resolution declaring the area in need of redevelopment in May 2001, plaintiff's assignor executed the sales agreement two weeks later, and plaintiff acquired title in July 2001; however, plaintiff did not file its initial complaint until June 2004. The trial judge was satisfied, as are we, that the due process provisions relating to notice contained in the LHRL were satisfied and the "interest of justice" did not warrant extension of the time limitations of N.J.S.A. 40A:12A-6 and Rule 4:69-6 for plaintiff's strictly private interests. See Town of Kearny v. Disc. City of Old Bridge, Inc., 205 N.J. 386, 393 (2011) (holding that "a non-record property owner is not entitled to individualized notice that redevelopment is being considered but only to newspaper publication" and "if that party does not object or challenge the blight designation at the hearing or in a timely action in lieu of prerogative writs, the issue is foreclosed").

We further note Drew's March l9, 200l letter, on Highland letterhead, to the City redevelopment agency stating that he had contracted with MMC to purchase the hospital, its license, and an array of medical equipment, acknowledging his understanding that the property was part of a Redevelopment Area, and requesting to present his proposed plan at the agency's April meeting. Thus having clearly known through its principal as early as March 2001 that the property was part of the Redevelopment Area, plaintiff has no justification for delaying more than three years to challenge the Redevelopment Plan.

Plaintiff next contends that even if the Redevelopment Plan were properly applicable to the site, it has a continuing right to use the site in accordance with the site's established nonconforming uses as allowed under both constitutional and MLUL provisions. It urges that its predecessor in interest closed title on the property relying upon Valetutto's certifications regarding those nonconforming uses, and the Piscatellis also spent millions of dollars in reliance upon those certificates. Plaintiff contends the court erred in viewing an action in lieu of prerogative writs as an exclusive remedy, thus failing to recognize the separate opportunity provided by the law for plaintiff to seek a declaratory judgment. The City counters that the pre-existing nonconforming use was abandoned when the MMC closed in l999, and claims the previous use was not the same as plaintiff's proposed use for the medical arts building.

"[O]ur jurisprudence disfavors nonconforming uses," and "[i]n fact, '[b]ecause nonconforming uses are inconsistent with the objectives of uniform zoning, the courts have required that consistent with the property rights of those affected and with substantial justice, they should be reduced to conformity as quickly as is compatible with justice.'" Berkeley Square Ass'n v. Zoning Bd. of Adjustment of Trenton, 410 N.J. Super. 255, 263 (App. Div. 2009) (third alteration in original) (quoting Town of Belleville v. Parrillo's Inc., 83 N.J. 309, 315 (1980)), certif. denied, 202 N.J. 347 (2010). Nevertheless, the statute "'expressly protects a vested right by permitting a pre-existing nonconforming use to co-exist with an ordinance that facially prohibits it.'" Berkeley Square, supra, 410 N.J. Super. at 267 (quoting DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 272 (2009)). We highlighted that "[i]n DEG, the Supreme Court noted that the protection of N.J.S.A. 40:55D-68 regarding pre-existing nonconforming uses has 'constitutional implications.'" Berkeley Square, supra, 410 N.J. Super. at 267 (quoting DEG, supra, 198 N.J. at 271). Thus, "while the applicant has the ultimate burden of proof the objector must initially come forward with sufficient evidence of temporal or physical abandonment to require the property owner to sustain its ultimate burden on the issue." Berkeley, supra, 40 N.J. Super. at 269.

The court did not address the issue of nonconforming use in any depth. The court's decision as to count one was based solely on its analysis of the untimeliness of plaintiff's challenges to the Redevelopment Plan. At argument on reconsideration, plaintiff's counsel briefly mentioned the alternative theory that the proposed uses were permitted uses either as under the terms of the Redevelopment Plan or as nonconforming uses under whatever zoning ordinances applied, but he focused primarily upon the challenged error of the premature dismissal.

During argument, the court appeared to have taken a limited view that "hospital use" was the only nonconforming use available to plaintiff. This might have been a reasonable view but for the letters in May and June 2001 from Valetutto to the Piscatellis, which confirmed the list of nonconforming uses and arguably induced them to purchase the subject property and develop it with those enumerated "Intended Uses" continuing as part of the Redevelopment Plan. Thus, abandonment may be a fact issue for trial. Considering our reversal of the prerogative writs count which pertained to the Zoning Board's and court's interpretation of permitted uses within the Redevelopment Plan, discussed below, we vacate dismissal of count one and reinstate and remand that count for further proceedings.

We logically turn now to plaintiff's Point XII pertaining to dismissal of the prerogative writs count (eleven). The issue arose from Valetutto's rescinding the Endeavor House permit, after which the Zoning Board determined the Endeavor House use was inconsistent with the Redevelopment Plan. Plaintiff urges that the court's similar interpretation of the Redevelopment Plan, affirming the Zoning Board determination, should be reversed, because the Board and court erred both in construing the ordinance's permitted uses as not including the Endeavor House proposal, and in finding as a fact that the proposed Endeavor House would be a "mental health clinic" or "halfway house."

Courts generally defer to the decision of a zoning board of adjustment, considering the board has special knowledge of local conditions. Smart SMR v. Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998); Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 166-67, (1992). However, a board's interpretation of an ordinance is essentially a legal issue, so as to that issue, the conclusions of the Zoning Board, as well as the Law Division, are not entitled to any particular deference. Reich v. Borough of Fort Lee Zoning Bd. of Adjustment, 414 N.J. Super. 483, 499 (App. Div. 2010). Similar to statutes, in construing ordinances, we aim to determine legislative intent and, in fact, land use ordinances are routinely "liberally construed in favor of the municipality." Schad v. Pennsauken, 160 N.J. 156, 171 (1999); Place v. Saddle River Bd. of Adjustment, 42 N.J. 324, 328 (l964). "When construing any legislation, we apply first its plain meaning." City Council v. Brown, 249 N.J. Super. 185, 191 (App. Div. 1991).

Both the Zoning Board and court interpreted the Redevelopment Plan as not permitting the proposed use of Endeavor House as testified to by Sherman, Messineo and Hunsher. They relied primarily on its secondary treatment of mental illness to be inconsistent with the express exclusion in the Plan for "mental health treatment facilities." Additionally, the fact that Endeavor House's proposed use was not specifically enumerated as a permitted use in the Redevelopment Plan was further evidence of the Planning Board and Council's intent that such proposed use was inconsistent with the Plan. The court elaborated with the additional finding that Endeavor's proposed use was "more akin to a halfway house than a long-term care facility," i.e., a nursing home; that if the Plan intended to permit a drug and alcohol treatment facility on the site, the governing body would have so stipulated and presumably would have incorporated some of the conditions of the B-2 conditional use zone; and that the mental health facility was an impermissible accessory use.

Based on our review of the record, analysis of the Redevelopment Plan, and applicable law, we disagree with the conclusion that the proposed use of Endeavor House was not a permissible use under the Plan. We are satisfied the Plan contained an illustrative list of permitted uses that were encompassed within the proposed use of the property by Endeavor House and that the mental health treatment component was not fatal to its permitted use. We therefore vacate dismissal of count eleven and remand.

The court began its analysis with the undefined term "long term care facility" and concluded the term meant those facilities commonly known as nursing homes, which certainly differed from the plan for the Endeavor House. This analysis, however, failed to view the Redevelopment Plan's correct language and full context. The term was included in an extended listing of permitted uses and was, in fact, listed as "Long term health care," not "long term care facility." (Emphasis added). Thus, restricting the term to permitting only nursing home uses creates too single-minded a focus. We do note the Board accepted as a fact that Endeavor House was licensed as a long-term residential facility by the State.

The permitted uses also have to be read in context. The "long term health care" item conveys a breadth that would permit a variety of long term care options, including ongoing inpatient and outpatient treatments such as the Endeavor House sought to provide. And, in fact, Hunsher testified without contradiction that the planned Endeavor House use would comfortably fit within several of the Plan's enumerated categories of permitted uses, including physical and occupational therapy, long term health care, outpatient services - clinical, outpatient counseling, and social work and services.

A case that is instructive is L & L Clinics, Inc. v. Town of Irvington, 189 N.J. Super. 332, 333 (App. Div.), certif. denied, 94 N.J. 540 (1983), which involved the right of a physician and his professional corporation to a certificate of occupancy to operate a privately owned, professional office as a methadone clinic in the B-1 Primary Business District. The Law Division granted summary judgment against the plaintiffs, finding the "proposed use was not permitted by the zoning ordinance in the B-l district but required a special use or conditional permit." Ibid. We reversed and ordered the town to issue the requested certificate of occupancy. Ibid.

In 1982, the plaintiff applied for an occupancy permit to operate "medical professional offices" on a daily basis on premises that had been used for professional offices and had been vacant since 1979. Ibid. An occupancy permit was issued promptly, but two months later it was rescinded for failure to state on the application that the intention was to establish a methadone clinic for treatment of heroin problems. Id. at 333-34. The plaintiff physician, who had been the director of a similar type of clinic in Paterson operated under the auspices of the State Department of Health, had been issued a certificate of need for the proposed Irvington facility pursuant to the Health Care Facilities Act of 1971, N.J.S.A. 26:2H-1 to -26. Id. at 334. The governing body then passed a resolution concluding the town had no need for a methadone clinic and refusing to treat addicts from other municipalities in Essex County. Ibid.

We noted there were twenty-five enumerated uses permitted by Irvington in the B-1 zone and that hospitals were permitted in the zone with a special use permit. Id. at 334-35. The Law Division found "a methadone maintenance clinic was more like a hospital than the traditional physician's office," so it upheld the denial of a certificate of occupancy and found "a special use permit or variance would be required for the proposed use." Id. at 336. We disagreed, holding "[e]ven though extensively enumerating specific permitted uses, [the ordinance] is not an exhaustive list of permitted uses but is only illustrative." Id. at 338. We concluded that the "proposed clinical facility [was] more rationally categorized within conventional understanding as a 'personal service use . . . similar in nature to . . . a professional office' under § 608.1-1(w), than within the conventional understanding of a 'hospital' use requiring a special permit." Ibid. (ellipsis in original).

We gave further weight to the certificate of need, adding:

When, as in this case, the need for a health care facility has been demonstrated and a certificate of need issued, public policy supports a reasonable interpretation of a municipal zoning ordinance which permits the use. [A] zoning regulation, like any other police power enactment, must promote public health, safety, morals or general welfare. [Id. at 339 (internal quotation marks and citation omitted).].

Concluding that the plaintiffs were entitled to a certificate of occupancy, we added: "We reject as unreasonably rigid the exclusionary interpretation which the Town of Irvington has placed on the words 'personal service uses . . . similar in nature to . . . professional offices' in its prime business zone in this situation." Id. at 340.

We recognize that the ordinance in L & L Clinics contained prefatory language of permitted uses, i.e., "similar in nature to," and there was no other zoning district in Irvington that would permit operation of a physician-staffed methadone maintenance clinic. Nevertheless, the case is instructive as a reminder that when we ascertain the reasonable construction of a zoning ordinance, we should analyze the content and context to avoid the Zoning Board's placing an "unreasonably rigid" and "exclusionary interpretation" on the words.

We are aware of the restrictions the City has imposed on drug and alcohol facilities, prohibiting residential facilities and conditionally limiting its use to the B-2 zone. That, alone, however, is an insufficient basis to conclude that the governing body's failure to enumerate this specific use in the MMC zone indicated such use was inconsistent with the Redevelopment Plan and was intended to be an excluded use. The MMC operated an onsite substance abuse treatment center prior to its closure. The permitted uses enumerated in the Redevelopment Plan were consistent with those uses. Other than Valetutto's vague comment about the Planning Board and Council being against permitting a drug and alcohol treatment facility on the subject site, no evidence was presented that the issue was ever discussed before adoption of the Redevelopment Plan, and he conceded there was nothing in writing evidencing any intention by the City to particularly prohibit drug and alcohol centers in the Plan.

We are similarly convinced the Zoning Board and court adopted an unreasonably exclusionary interpretation of "mental health clinic," which was unwarranted by the history of the subject property's previous uses and the proposal at hand. Based on the record, the most reasonable interpretation of the Redevelopment Plan language was that the City sought to preclude continuation of the MMC's mental health unit, where persons who potentially were dangerous to themselves or others were analyzed for treatment needs, where people sometimes wandered into the community and which sometimes included referrals for civil commitment at the Marlboro Psychiatric Hospital. The testimony before the Zoning Board clearly demonstrated this is nothing like what was proposed for the Endeavor House.

As previously noted, Endeavor House is licensed as a residential substance abuse treatment facility by the Division of Addiction Services and the witnesses proffered by Endeavor House made it clear that it is not either licensed to perform, nor does it in fact perform, the function of a "mental health clinic." Although persons with drug and alcohol abuse were treated by psychiatrists, the plans for the facility to treat only detoxified, non-emergency, non-crisis, non-violent, non-MICA, voluntarily admitted patients, took it out of the common understanding of a "mental health clinic." We particularly note Messineo's testimony that only about fifteen percent of Endeavor House's patients had such a secondary diagnosis of depression or anxiety. Moreover, as she explained, if mental symptoms were mild and the result of substance abuse, then Endeavor House would treat the person. However, if a person's depression or another mental illness caused drug or alcohol problems, that person would not be accepted into the program because the mental illness would be the primary diagnosis. Accordingly, the "mental health" term cannot logically form a basis for denying Endeavor House's permit.

Some State regulatory provisions help to reinforce the view that the proposed Endeavor House was not a "mental health clinic." N.J.A.C. 10:52-1.2 provides definitions for the Department of Human Services' Hospital Services Manual. That Manual provides that the New Jersey Division of Medical Assistance and Health Services sets forth its Division requirements for substance abuse treatment centers at N.J.A.C. 10:66, under the caption Independent Clinic Services. N.J.A.C. 10:66-2.1 describes the New Jersey Medicaid and NJ FamilyCare fee-for-service programs' policies and procedures for the provision of covered services in an independent clinic setting. Notably, separate sections follow for "Drug treatment center services" at N.J.A.C. 10:66-2.3 and "Mental health services" at N.J.A.C. 10:66-2.7. In the definitional section for those regulations, at N.J.A.C. 10:66-1.2, the two terms are separately defined. "Drug treatment center" is an independent clinic, whether freestanding, or a distinct part of a facility which is licensed or approved by the New Jersey State Department of Health and Senior Services (DHSS), or is similarly licensed by a comparable agency of the state in which the facility is located, to provide health care for the prevention and treatment of drug addiction and drug abuse, in accordance with N.J.A.C. 8:43A-26, Drug Abuse Treatment Services. [N.J.A.C. 10:66-1.2.]

In contrast, "Mental health clinic" is an independent clinic, whether freestanding, or a distinct component of a multi-service ambulatory care facility, which meets the minimum standards established by the Community Mental Health Services Act implementing rules, including, but not limited to, N.J.A.C. 10:37, and is approved by the Division of Mental Health Services, in accordance with that Division's rules, or is similarly licensed by a comparable agency of the state in which the facility is located. [Ibid.]

Different State agencies oversee these two types of facilities. These differences in regulatory oversight align with the testimony by Sherman and Messineo at the Zoning Board hearing that substance abuse is different from mental illness, and that Endeavor House intended to operate to screen out patients with substantial mental illness issues. The Zoning Board was well within its authority to give weight to Valetutto's testimony, in view of his participation in the Redevelopment Plan process, but ultimately we must look to the Plan as enacted by the City, which did not exclude a drug or alcohol rehabilitation program.

We turn now to plaintiff's statutory challenges, contained in counts two (LAD), five (ADA), six (Rehabilitation Act), seven (§ 1983), eight (FHA), and nine (CRA). In count two, plaintiff alleged two violations of the LAD: (1) discrimination on the basis of race or national origin against Enemuo regarding his operation of a pharmacy, and (2) discrimination against a protected class regarding Endeavor House, a treatment center for recovering drug addicts and alcoholics. In count nine, plaintiff claimed defendants' actions in attempting to revoke previously issued permits to Enemuo for the operation of a pharmacy at the MMC constitutes discrimination based on race and national original in violation of the CRA. In counts five and six, plaintiff claimed the City's absolute ban on residential treatment centers and the Redevelopment Plan, as applied to deny Endeavor House a zoning permit at the MMC, continues to discriminate against persons with disabilities and constitute willful, malicious, and deliberate action intended to invidiously discriminate against persons with disabilities, and that the Mayor actually participated in, directed, or showed willful indifference to this conduct. In count seven, plaintiff asserted that these actions and inactions by defendants violated the rights of Endeavor House's prospective clients to due process and equal protection, and the Mayor's conduct was as aforementioned. In count eight, plaintiff claimed the Redevelopment Ordinance on its face makes a dwelling unavailable to a handicapped person and defendants' actions and inactions in applying the Redevelopment Plan and Ordinance to prevent Endeavor House from operating at the MMC violate the FHA, and the Mayor's conduct was as aforementioned.

In its opinion of February 8, 2010, the court noted that the alleged discrimination was not directed at plaintiff, but rather at Enemuo and Endeavor House, and that Enemuo was never a party to the lawsuit and Endeavor House withdrew as to all the counts other than the prerogative writs count (eleven). Accordingly, the court found plaintiff could not assert a claim for personal damages for Enemuo. Nor was plaintiff an individual with a defined disability or a licensee who provided services to such persons, and thus could not assert a claim for personal damages on another's behalf. The court further held that to the extent plaintiff's damages were based on a claim of discriminatory conduct resulting in the loss of the lease with Enemuo or Endeavor House, such claim was not cognizable within these statutory causes of actions. Accordingly, the court dismissed these counts based on lack of standing.

"Standing is a threshold justiciability determination of whether [a] plaintiff is entitled to initiate and maintain an action on the matter before the court." Spinnaker Condo. Corp. v. Zoning Bd. of Sea Isle City, 357 N.J. Super. 105, 110 (App. Div.), certif. denied, 176 N.J. 280 (2003). To have standing, a plaintiff must have "'a sufficient stake and real adverseness with respect to the subject matter of the litigation [and a] substantial likelihood of some harm . . . in the event of an unfavorable decision[.]'" Jen Elec., Inc. v. Cnty. of Essex, 197 N.J. 627, 645 (2009) (alteration in original) (citation omitted).

Berner v. Enclave Condominium Ass'n, 322 N.J. Super. 229, 231 (App. Div.), certif. denied, 162 N.J. 131 (1999), lends some support for plaintiff's argument on standing with respect to its LAD claims. We held that a Caucasian condominium owner had standing to assert a LAD claim against a condominium association that did not permit him to lease his unit to an African American because of his race. Ibid. We wrote: "[The] [p]laintiff was directly affected by Enclave's actions, having lost his lease to Murray. He was no more or less the object of Enclave's conduct than was Murray." Id. at 234. In this respect, we preliminarily interpreted N.J.S.A. 10:5-13, which provides that "'[a]ny person claiming to be aggrieved by . . . unlawful discrimination' may file a LAD complaint" to include the plaintiff as "such an aggrieved person." Id. at 235.

Plaintiff here contends that discrimination contrary to the LAD caused him to lose his leases with Enemuo and Endeavor House. Arguably under Berner, plaintiff had standing to assert his LAD claim for lease damages. Nevertheless, based on our review of the record, we affirm dismissal of this count as to Enemuo.

Plaintiff asserts that Enemuo lost his business and plaintiff lost a rent-paying tenant with no lawful justification, but was denied a permit allowing sales to the public solely "because he is 'African.'" The LAD broadly protects against unlawful discrimination based upon a person's "race, creed, color, national origin, ancestry," and other characteristics. N.J.S.A. 10:5-4. Despite the LAD's breadth, the allegations in this record, even under the Brill standard, are too bare to sustain a cause of action. Plaintiff (through Hillcrest) had a lease agreement with Enemuo in June 2003, and they entered into a lease termination agreement in June 2005. Valetutto granted a permit for Enemuo's proposed pharmacy on October 3, 2003, and in December 2004, he issued a letter purporting to impose major restraints on that approval. Plaintiff asserts that on one occasion the Mayor made a statement that negatively referred to Enemuo's ethnicity. Even if it can be proven, that lone statement is insufficient to create a material issue of fact likely to establish an LAD cause of action, as no evidence links the racially charged statement to Valetutto's December 2004 letter.

Accordingly, even if plaintiff had standing to assert a potential claim under the LAD for loss of lease damages, he has failed to raise a debatable issue on this count to withstand summary judgment dismissal. Our analysis is similar with respect to count nine asserting a claim under the CRA, and thus this count was properly dismissed based on the bare allegations of racial discrimination as to Enemuo.

Plaintiff asserts that there is no dispute that Endeavor House's patients, recovering drug addicts and alcoholics, are a protected class under the LAD, citing In re Cahill, 245 N.J. Super. 397, 400 (App. Div. 1991). Plaintiff alleged that by prohibiting Endeavor House's tenancy at the subject property, the City denied those protected classes public accommodations, violating the LAD. Plaintiff also claimed the City's blanket ban on residential drug and alcohol treatment centers by Ordinance § 53-79 and the Redevelopment Plan, as applied, to deny Endeavor House's permit was a violation of the LAD. Plaintiff does not articulate it as such, but presumably it is asserting this claim under a Berner theory of financial damages for loss of a lease, and not for personal loss on behalf of the disabled individuals.

Allowing plaintiff the benefit of all favorable inferences, as one must on a summary judgment motion, a reasonable fact-finder might find that Endeavor's permit was denied for discriminatory reasons in violation of the LAD. Accordingly, we vacate dismissal of count two as it applies to Endeavor House and reinstate and remand that count consistent with Berner, limited to damages due to discriminatory conduct resulting in the loss of the lease.

The gravaman of plaintiff's argument on appeal in Points VI and VII is that it is entitled to assert claims under the ADA and Rehabilitation Act (counts five and six) because these Acts confer broad standing on entities to bring discrimination claims based on their association with disabled individuals. The cases plaintiff relies on as support for its standing argument under these Acts involve plaintiffs who are alleging they have been discriminated against because of their association with a protected class. See New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 300, 308-10 (3d Cir. 2007) (holding that plaintiffs, a methadone clinic along with its individual patients, have standing to sue on its own behalf and on behalf of its clients under the ADA and Rehabilitation Act and discussing the requirements for individual patients' standing in order to resolve claims for damages under the statutes); Addiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 405-07 (3d Cir. 2005) (holding that a methadone clinic has standing to sue for its own alleged injuries of damages under the ADA and Rehabilitation Act so long as it was discriminated against based on its association with disabled parties); MX Group, Inc. v. City of Covington, 293 F.3d 326, 334 (6th Cir. 2002) (holding that entities have standing to sue under the ADA as being discriminated against "because of their known association with an individual with a disability"); Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 732 (9th Cir. l999) (holding that the ADA applies to zoning and permitting a methadone clinic to appeal the denial of a zoning permit); Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 46-48 (2d Cir. l997) (holding that a drug and alcohol rehabilitation center has standing to allege discrimination under the ADA and Rehabilitation Act).

These cases are inapposite. It is undisputed plaintiff is not a qualified individual with a disability. It is also undisputed plaintiff is not licensed to operate a drug and alcohol facility and provides no services to persons seeking treatment at such facility who would presumably be considered disabled individuals under the statutes. Rather, plaintiff is an unrelated landowner who simply contracted to lease the property to the tenant, Endeavor House, the licensed entity that operates the facility and provides the services to those persons who are allegedly discriminated against by virtue of defendants' zoning decisions. Moreover, Endeavor House voluntarily withdrew its statutory claims against defendants. Plaintiff cites no case that confers standing on a landlord under the ADA and RA under these circumstances. Accordingly, counts five and six were properly dismissed by the trial court for lack of standing.

In count seven, plaintiff alleged defendants' actions and inactions denied Endeavor House's prospective clients due process and equal protection rights under the federal and state constitutions, as guaranteed to them through 42 U.S.C.A. § 1983, and the Mayor "participated in, directed, or showed willful indifference to that conduct." Plaintiff was not targeting a single decision or action with this claim, but rather the "custom, policy, and practice" in place in South Amboy whereby plaintiff suffered adverse actions upon "every whim and caprice of a Mayor angered at the rejection of his demands."

Even if plaintiff had standing to assert this claim, we are satisfied this count was properly dismissed as plaintiff's proofs, even with all favorable inferences, are insufficient to establish a cause of action.

To establish a § 1983 claim, upon identifying the person acting under color of law that has caused an alleged deprivation of rights, a plaintiff must next identify the "right, privilege or immunity" secured to the claimant by the Constitution or other federal laws. Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, 363, cert. denied, 519 U.S. 911, 117 S. Ct. 275, 136 L. Ed. 2d 198 (1996). This second step is necessary because § 1983 "'is not itself a source of substantive rights,' but merely provides 'a method [for] vindicating federal rights elsewhere conferred.'" Ibid. (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 S. Ct. 2689, 2694 n.3, 61 L. Ed. 2d 433, 442 n.3 (1979)). Moreover, to sustain a claim of civil rights violations in a land use context, a substantive due process claimant must provide evidence of governmental action that "shocks the conscience." Id. at 366; accord United Artists Theater Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392, 401-02 (3d Cir. 2003).

In the present matter, plaintiff's complaint focuses on the deprivation of rights of the prospective Endeavor House clients and of Enemuo in seeking to establish his pharmacy. In neither situation has plaintiff presented evidence that shocks the conscience. In the former, defendants have articulated legal and procedural reasons for believing that Endeavor House may be excluded from operating at the subject property; those ultimately may prove incorrect, but they do not embody shocking violations of federal legal rights. Concerning Enemuo, as noted previously, plaintiff has raised insufficient allegations to make a claim.

In Point IX, plaintiff contends that, in dismissing count eight, the trial court once again inappropriately relied upon standing, emphasizing that Endeavor House was no longer a party to this claim, and did not address whether Endeavor House's proposed facility could be a "dwelling" under the FHA. If plaintiff showed the discriminatory treatment or discriminatory impact of an ordinance purporting to exclude a class of handicapped persons, then the burden would shift to South Amboy to justify the discriminatory classification.

Under 42 U.S.C.A. § 3604(f)(1), it is unlawful

[t]o discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of--

(A) that buyer or renter[;]

(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or

(C) any person associated with that buyer or renter.

The court did not discuss any of the cases pertaining to standing with respect to the various statutory claims but perfunctorily concluded that plaintiff as landlord had no standing to assert an FHA claim. In Dunn v. New Jersey Department of Human Services, 312 N.J. Super. 321, 325 (App. Div. 1998), a property owner contracted with a private group to purchase the property and convert it to use as a group home for emotionally disturbed teenagers. After the city approved the plan and the owner secured a remodeling permit and completed almost all of the work, the city sought to terminate the project and issued a stop work order. Id. at 325-26. The property owner and the private group alleged violations of the FHA and the LAD. Id. at 325. The property owner claimed he suffered financial damages because he was not permitted to complete the work. Id. at 326.

In addressing the issue of counsel fees, we found the property owner was an "aggrieved person," with standing to maintain an action and recover damages under the FHA. Id. at 331-32. We explained: 42 U.S.C.A. § 3613(a)(1)(A) authorizes an aggrieved person to commence a civil action under the FHAA. 42 U.S.C.A. § 3602(i)(1) defines an aggrieved person as any person who "claims to have been injured by a discriminatory housing practice." See Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S. Ct. 1114, 71 L. Ed. 2d 214 (1982) (a plaintiff has standing under the Fair Housing Act if plaintiff suffered injury as a result of defendant's actions). In Growth Horizons, Inc. v. Delaware Cty., Pa., 983 F.2d 1277, 1282 n.6 (3rd Cir. 1993) (citations omitted), the court explained that an aggrieved person under section 3602 "does not necessarily have to be the person discriminated against."

Developers are aggrieved persons under section 3602, with standing to bring an action under the Act. See, e.g., Hovsons Inc. v. Township of Brick, 89 F.3d 1096, 1100 n.2 (3rd Cir. 1996) (determining that a developer of a nursing home could pursue a claim under the FHAA). In Franklin Bldg. Corp. v. City of Ocean City, 946 F. Supp. 1161 (D.N.J. 1996), the court rejected the argument that plaintiff builder lacked standing because it was not within the class of persons which the FHAA intended to protect. The court explained that plaintiff had standing because it alleged that "defendants discriminated on the basis of handicap" and it "suffered economic injury as a result of this discrimination. To require more [] to confer standing would transform the standing inquiry into a judgment on the merits." Id. at 1166. [Dunn, supra, 312 N.J. Super. at 331-32.]

Based on Dunn, we are persuaded the trial court erred in summarily dismissing plaintiff's FHA claim based on standing. The court did not determine whether the proposed Endeavor House facility would constitute a "dwelling" even though it was commercial in nature such that the FHA would apply. See 42 U.S.C. § 3602(b) (defining a "dwelling" as "any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof"); Lakeside Resort Enters., LP v. Bd. of Supervisors, 455 F.3d 154, 156-60 (3d Cir. 2006) (holding that a proposed drug and alcohol treatment facility, in which residents would treat the facility like home and where their average stay was 14.8 days, qualified as a dwelling under the FHA), cert. denied, 549 U.S. 1180, 127 S. Ct. 1170, 166 L. Ed. 2d 994 (2007). We therefore vacate dismissal of count eight and reinstate and remand that count for further proceedings, including a determination of whether the MMC qualifies as a "dwelling" under the FHA.

Turning to Points IV and V respecting counts three and four, plaintiff asserted lack of due process in South Amboy's failure to follow MLUL procedures, including failure to give required notice, and the approach used by the City denied plaintiff access to review mechanisms. The trial court addressed these two counts together, noting plaintiff's obligation to exhaust administrative remedies, as it had done with the Endeavor House matter, by bringing challenges to permit denials before the Zoning Board. The court held the Endeavor House approvals were properly denied as contrary to the Redevelopment Plan, and if the Plan were found invalid, the area's residential zoning would be reinstated, and thus the commercial uses would not be permitted. Finding no denial of due process, the court dismissed counts three and four, with which we are in accord.

Many of plaintiff's arguments deal with challenges to the Redevelopment Plan, which we have already determined are untimely. Although we disagree with the Zoning Board's and court's legal interpretations of the permitted uses of the Redevelopment Plan with respect to Endeavor House, we are satisfied the Endeavor House issues were considered with ample due process before the Zoning Board.

The trial court's opinion did not expressly address the South Amboy Eldercare matter, presumably including it within the analysis that any challenges should have been brought before the Zoning Board. Valetutto's "flip-flopping" and unusual requirement of a State license was certainly disconcerting, but some of that arose because South Amboy Eldercare filed two very different applications for its permit requests. In any event, nothing explains why plaintiff failed to seek review by the Zoning Board upon being dissatisfied with Valetutto's actions.

In Point XI, plaintiff challenges dismissal of count ten, which alleged defendant committed impermissible inverse spot zoning by narrowing the area in need of redevelopment to the MMC in order to impose restrictions on the pre-existing uses assured to the Piscitellis by Valetutto and that the Mayor participated in, directed, or showed willful indifference to that conduct.

"Spot zoning" involves "'the use of the zoning power to benefit particular private interests rather than the collective interests of the community.'" Gallo v. Mayor and Twp. Council of Lawrence Twp., 328 N.J. Super. 117, 127 (App. Div. 2000) (quoting Taxpayers Ass'n of Weymouth Twp. v. Weymouth Twp., Inc., 80 N.J. 6, 18 (1976), cert. denied, 430 U.S. 977, 97 S. Ct. 1672, 52 L. Ed. 2d 373 (1977)). A plaintiff bears the burden of proving that a zoning ordinance constitutes illegal spot zoning. Gallo, supra, 328 N.J. Super. at 127.

"[A]ny land-use decision which arbitrarily singles out a particular parcel for different, less favorable treatment than the neighboring ones" is reverse or inverse spot zoning." Riya Finnegan LLC v. Twp. Council of South Brunswick, 197 N.J. 184, 197 (2008). In striking the offending ordinance, our Supreme Court explained:

It is not simply that the zoning for plaintiff's parcel was changed, or that it will now be more difficult for the owner to develop it in accordance with the new zoning designation when its proposed site plan was completely in accord with the previously-designated zone. It is not only that the neighboring property owners were the impetus for the change, or that the new zone was originally designed for an entirely different part of the town and for different planning purposes or that the new zone does not further a comprehensive plan. It is not merely that the planning board or the municipality's governing body acted without hearing from expert planners or consultants that makes this ordinance defective. Rather, it is the combination of those facts that marks this decision as an example of inverse spot zoning and makes the choice of the governing body both arbitrary and capricious. [Ibid.]

The Court added: "The emphasis, of course, is on the arbitrary nature of the decision rather than simply upon whether a particular parcel has received beneficial or detrimental treatment." Ibid.

As previously stated, we agree with the trial court that plaintiff's challenge to the MMC Redevelopment Plan is untimely. Nevertheless, plaintiff fails to present evidence that in adopting the Plan, the City treated the subject property less favorably than its neighboring properties. As the surrounding properties were residential, and plaintiff was permitted to use the MMC site for commercial purposes, the adoption of the Redevelopment Plan for the MMC property did not single out the property for negative treatment in relation to the surrounding properties. In fact, the City treated the MMC property more favorably than the surrounding properties, pursuant to a comprehensive plan, by increasing the types of uses that were permitted on the site. As the court noted in dismissing this count, even if plaintiff were successful in setting aside the Redevelopment Plan, the original zoning would be reinstated, which "is residential, and therefore these commercial uses would not be permitted in any event."

In its last argument, plaintiff asserts error by the trial judge in denying its motion for recusal filed in response to the judge's sua sponte dismissal of count one after a hearing that was solely aimed at deciding count eleven. See Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001) (holding that a motion for recusal "may be granted for any 'reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so'") (quoting R. 1:12-1(f)).

The record reflects no bias or appearance of bias by the trial judge in this matter. The recusal decision was well within his sound discretion, Jadlowski v. Owens-Corning Fiberglas Corp., 283 N.J. Super. 199, 221 (App. Div. 1995), certif. denied, 143 N.J. 326 (1996), and we discern no basis to second-guess his denial of that motion. As an aside we note that when plaintiff sought reconsideration of dismissal of the first count, the judge readily found he may have "painted the Count 1 relief with too broad a brush" and modified his ruling.


We affirm the dismissal of counts two (LAD) with respect to claims regarding Enemuo, three (MLUL), four (due process), five (ADA), six (Rehabilitation Act), seven (§ 1983), nine (CRA), and ten (inverse spot zoning). We reverse count eleven (prerogative writs) and vacate dismissal of counts one (declaratory judgment), two (LAD) with respect to claims regarding Endeavor House and count eight (FHA), and reinstate and remand these counts for further proceedings consistent with this opinion. We do not retain jurisdiction.

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