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Stefansky v. Zoning Board of Adjustment of Township of Lakewood

Superior Court of New Jersey, Appellate Division

May 23, 2013

AARON STEFANSKY, Plaintiff-Appellant,


Argued February 5, 2013

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2975-11.

Edward F. Liston, Jr., argued the cause for appellant.

Russell P. Cherkos argued the cause for respondent Zoning Board of Adjustment of the Township of Lakewood (Dasti, Murphy, McGuckin, Ulaky, Cherkos & Connors, attorneys; Mr. Cherkos, of counsel and on the brief).

Michael B. York argued the cause for respondent David Sebbag (Novins, York & Jacobus, attorneys; Mr. York, on the brief).

Before Judges Lihotz and Kennedy.


Plaintiff Aaron Stefansky appeals from the dismissal of his complaint in lieu of prerogative writs challenging the adoption of a resolution by defendant Zoning Board of Adjustment of the Township of Lakewood (the Board). Defendant David Sebbag filed an application for preliminary and final major site plan approval with variances to construct an addition to an existing assisted living facility. Plaintiff, who is the owner of two rental properties located within 200 feet of the proposed development, along with several members of the public, objected to the proposed development, primarily arguing the proposed use would generate significant traffic and had insufficient parking. At the conclusion of extensive public hearings, the Board approved Sebbag's application. The Law Division reviewed and rejected plaintiff's complaint alleging the Board's action was arbitrary, capricious, and unreasonable. Plaintiff renews these challenges before us on appeal. We affirm.

Sebbag owns two lots, 5 and 8, in the same Lakewood Township tax map block, situated on Madison Avenue, also known as U.S. Route 9. The property sits in a residential office park (ROP) district. Lot 8 is developed and contains the Lakewood Courtyard assisted living facility. Section 18-200 of Lakewood's Unified Development Ordinance (LUDO) defines an assisted living unit as:

A dwelling unit varying in square feet from two hundred (200) to five hundred (500) square feet that provides a residential living environment assisted by congregate meals, housekeeping and personal services, for persons fifty-five (55) years of age or older, who have temporary or periodic difficulties with one or more essential activities of daily living[.]

The LUDO conditionally permits assisted living facilities in all "non-residential zones." Lakewood Twp., N.J., Unified Dev. Ordinance § 18-1004. Despite its name, the ROP zone is a "non-residential zone."[1]

In 1996, Sebbag obtained a use variance to allow development of Lakewood Courtyard on the 77, 350 square foot (approximately 1.77 acres) Lot 8. Approvals were obtained to transform the existing hotel structure into a 140-unit assisted living facility with fifty-four parking spaces. Sebbag actually constructed ninety-one units, of which eighty included full-time nursing care.

Sebbag subsequently acquired Lot 5, adjacent to Lakewood Courtyard on Route 9. In September 2010, Sebbag filed an application with the Board, seeking permission to expand Lakewood Courtyard on to Lot 5 by developing forty dwelling units restricted to individuals at least sixty years of age and in need of assistance with the "normal activities of daily life." The application proposed to construct a residential building consisting of seven studios, twenty-eight one-bedroom apartments, four two-bedroom apartments, and one two-bedroom superintendent's apartment. The new facility would be connected to the existing facility by multiple corridors and hallways and the two facilities would share parking. The application sought preliminary and final site plan approval with use and bulk variances.

Plaintiff owns property on First Street, within 200 feet of the proposed development. He objected to Sebbag's application, contending "it [wa]s not an expansion but rather constitute[d] a new, nonconforming use in that it propose[d] to create [not an] assisted living facility but rather an age-restricted, multi-family house[]."

The Board held public hearings to review the application on four dates — April 4, May 16, June 6, and July 11, 2011. Three issues dominated the hearings: (1) whether the application sought to expand a "nonconforming use, " or to construct multi-family housing, a new, nonconforming use; (2) whether the development adversely impacted traffic flow, especially on First Street, which would now serve as the lone egress from the development; and (3) whether the proposed parking was sufficient to accommodate the proposed use.

Sebbag presented expert testimony from Brian Flannery, a licensed professional engineer and professional planner, and Scott Kennel, a traffic consultant. Flannery addressed those facts satisfying the requests for use and bulk variances. His testimony considered whether the proposed development should be treated as an expansion of a conditionally permitted use, or merely a use variance for a non-permitted use. Further, he reviewed why the proposed facility constituted an assisted living facility rather than age-restricted, multi-family housing, but explained the application satisfied all necessary criteria to obtain approval using either characterization. When asked to identify the primary relief sought, Flannery reaffirmed the application sought an expansion of an existing, nonconforming use, which was conditionally permitted, and noted a variance was needed because not all conditions were met.

As to use, Flannery cited the findings of the Township engineer, which supported the Board's November 1996 approval of Lakewood Courtyard on Lot 8. Flannery noted the Board found "a special reason exists . . . to permit the project. The project shall be an enhancement to the area and an addition of such facility is needed in the area. The project shall not be detrimental to the zone or zone plan." Flannery asserted these facts equally applied to the proposed development on Lot 5, which was an extension of Lakewood Courtyard and, in his opinion, an inherently beneficial use. Flannery concluded the proposed use represented "the least possible impact development scenario for this particular piece of property[, ]" and provided an aesthetically pleasing building while eliminating a vacant restaurant.

Flannery maintained the development satisfied each of the requirements of the LUDO's definition of "assisted living unit." The proposed facility's residents, like those in Lakewood Courtyard, would "have temporary or periodic difficulties with one or more essential activities of daily living, such as feeding, bathing, dressing, or mobility[.]" Therefore, the proposed units, like the existing ones, would include congregate meals, housekeeping, and other personal services such as transportation and recreation, all of which would be included as part of the rental. Further, the proposed units would have "emergent nursing care, " entailing onsite medical personnel to provide care on ...

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