United States District Court, D. New Jersey
Yates Real Estate, Inc.; Yates House for Military Veterans, Inc.; and John and Jane Doe, Plaintiffs,
Plainfield Zoning Board of Adjustment; City of Plainfield, Defendants.
matter comes before the Court on a motion for a preliminary
injunction (DE 8) brought by the plaintiffs, Yates Real
Estate, Inc. ("Yates RE"), and Yates House for
Military Veterans, Inc. ("Yates House"). (I will
distinguish between the plaintiffs as necessary, but
otherwise refer to them collectively as "Yates.")
Defendants Plainfield Zoning Board of Adjustment
("Zoning Board") and the City of Plainfield
("City") oppose the plaintiffs' application.
2017, Yates filed an application with the Zoning Board for
thirty-eight variances and thirty-three waivers to permit him
to develop a 25-unit apartment complex in the City's Van
Wyck Brooks Historic District. To do so, Yates required use,
density, height, and bulk variances, as well as design
waivers. Yates purchased the property in 2012, knowing that
the property was in the historic district and was zoned for
October 4, 2017 and June 6, 2018, the Zoning Board held six
days of hearings on Yates's application. It was midway
through the hearing that Yates first agreed to deed-restrict
the property to military veterans. Yates proffered that
homeless veterans frequently suffer from Post-Traumatic
Stress Disorder ("PTSD"), but never agreed to
confine residency to veterans with PTSD. Yates argued,
however, that because the building was likely to service some
PTSD sufferers, several federal civil rights statutes
mandated that Yates's application be granted as a
of resolution dated August 1, 2018, the Zoning Board denied
the application. It found that the requested variances would
violate not only historic-preservation provisions as such,
but also basic regulations (e.g., minimum square
footage of units, storage space, parking) that would apply
generally to any apartment building.
August 13, 2018, Yates filed this action against the Zoning
Board and City, alleging that the denial of its application
violated (1) the Fair Housing Act of 1968, as amended by the
Fair Housing Amendments Act of 1988 ("FHAA"); (2)
the Americans with Disabilities Act ("ADA"); (3)
the Rehabilitation Act; and (4) the New Jersey Municipal Land
Use Law ("MLUL"). For current purposes, the
analysis would be similar under any of the three federal
before the Court is the plaintiffs' motion for a
preliminary injunction. Yates requests that this Court
effectively grant its zoning application so that permits can
be issued and renovations can begin at the subject property.
(DE 8). For the reasons stated in this Opinion, the motion
for a preliminary injunction is denied.
Yates's Application before the Zoning Board
RE is a developer which seeks to develop a piece of property
located at 808-814 Central Avenue in the City of Plainfield.
(Compl, Ex. I, ¶1 (City of Plainfield, Zoning Board of
Adjustment, Resolution of Findings and Conclusions, dated
August 1, 2018 (hereinafter "Resolution"))). Tax
records state that Yates RE purchased the property on July
24, 2012 for $100, 000, although Yates RE also submitted
evidence that it purchased the property for $300, 000.
(Resolution ¶4; DE 24-26, at 7). Yates RE has agreed to
lease the property to Yates House, a 501(c)(3) nonprofit
entity, for the sum of $1.00 per year. (Resolution ¶60;
Compl ¶ 10).
property lot is 30, 089 square feet, and the proposed
building would contain 14, 065 square feet. (DE 24-5). It
contains a vacant three-story dwelling with a two-story
addition. (Resolution ¶2). The property is located
within the City's Van Wyck Brooks Historic District.
Apartment buildings are not a permitted use within that
district. (Resolution ¶3). In 1981, the City designated
this area as a historic district, and it was placed on the
New Jersey Register of Historic Places in 1985. (Resolution
Conclusions at 49, ¶11). The zoning was downsized
to permit two units per acre in order to protect the historic
nature of the area. (Resolution ¶228). The zone permits
one- or two-family residential uses, as well as
bed-and-breakfast inns. (DE 1-2, at 57).
2017, Yates filed an application with the Zoning Board for a
series of variances so that the property could be renovated
into an apartment building. (Resolution ¶¶5, 15;
1T3:4-8). Yates wants to build a three-story addition to the
rear of the vacant three-story building, and to convert the
building to twenty-five apartments. (Id.).
application included a request for thirty-eight variances and
thirty-three waivers. (1T32:1-7-20). The requested variances
in Yates's application before the Board included the
following: (1) use variance under N.J. Stat. Ann.
§40:55D-70(d)(1) to allow for the construction of an
apartment building in the zone; (2) density variance under
N.J. Stat. Ann. §40:55D-70(d)(5) to allow for 36.2 units
per acre, instead of two; (3) height variance under N.J.
Stat. Ann. § 40:55D-70(d) from the statutory maximum of
thirty-five feet to forty-one feet; (4) bulk variances under
N.J. Stat. Ann. §40:55D-70(c) relating to maximum
building and lot coverage; and (5) a series of variances to
maintain the current nonconforming conditions related to the
lot area, width, frontage, and side-yard setback. (Resolution
also sought a series of supplemental zone variances and
design waivers. (Resolution ¶9(A)-(W)). The most
contested aspect of this part of the application concerned
the size of the proposed units. Studio apartments are
required to be a minimum 500 square feet; twenty-one or
twenty-two of the 25 proposed units, however, are less than
500 square feet. The smallest unit is 256 square feet.
(Resolution ¶9(M); 3T101:5-9, 105:2-5; 4T: 18:7-17; DE
24-5; DE 24-18).
part of this application sought relief from the Residential
Site Improvement Standards ("RSIS"), which requires
1.8 parking spaces per one-bedroom apartment. (Id.;
4T55:24-25). Forty-five parking spaces would be required for
a twenty-five-unit apartment, but only eleven spaces were
proposed. (Resolution ¶9(K); 4T53:24-4, 56:13-17).
Finally, although RSIS requires each unit to have 350 cubic
feet of associated storage space, none of the proposed units
offer any storage space. (Resolution ¶9(Q);
Hearings before the Zoning Board
Board held hearings on Yates's application on six dates:
October 4, 2017; November 1, 2017; December 6, 2017; April
11, 2018; May 2, 2018; and June 6, 2018. (See
Resolution). Yates presented the testimony of Yates's
principal, Andre Yates; David Cathcart, a
clinician specializing in the treatment of PTSD;
Emerson Crooks, a veteran; David Pearson, the Assistant
Director of Catholic Charities and Support Services for
Veteran Families; Pastor Seth Kaper-Dale, the developer and
operator of a homeless veteran facility in Highland Park, New
Jersey; Anthony Flax, the CEO of Yates House; Dr. Sean R.
Evers, Ph.D.; William Doran, RA, the architect of the
proposed property; Daniel Doran, P.E.; Rhonda Coe, an
affordable housing expert; and John Leoncavallo, a
professional planner. (Resolution ¶¶12, 15, 59-70,
82-123, 129, 140, 153, 181). William Michelson, the Chairman
of the Historic Preservation Commission ("HPC"),
and several members of the public also testified. (Resolution
Yates indicated that the purpose of the property was "to
create permanent housing for military veterans in Union
County." (1T15:22-16:1). In a subsequent hearing date,
he reconfirmed that the criteria for placement in the
facility would be that the individual is a veteran.
(2T50:19-23). Flax testified that "the general
profile" of the tenants would be male and female
veterans in their twenties to middle-aged, some of whom would
be coming to the facility directly from the service,
shelters, or temporary housing. (2T10:16-21).
restriction of occupancy to veterans, or homeless veterans,
or veterans with PTSD, was an evolving and somewhat elusive
concept. At one point, the attorney for Yates indicated that
Yates was considering limiting the occupancy of the
project to veterans, but that Yates "was not yet willing
to agree to such a limitation." (Resolution
¶78; 2T85:16-86:11 (emphasis added)). In response to a
concern raised by a member of the public, Mr. Vignuolo, a
board member, engaged in the following exchange with
MR. VIGNUOLO: Mr. Rother, if I may, would the applicant be
amenable to a condition of any approval that the use is
limited to housing for veterans, as opposed to -
MR. ROTHER: We have actually discussed that, and I would like
to reserve a comment on that. But we have discussed that
already, that's something we have under discussion.
MR. VIGNUOLO: I just figured, at this time, it was a concern
raised by a resident, and certainly that restriction would .
. . resolve that concern, and any subsequent use of the
property for the general public, as opposed to veterans,
would then require an additional use variance before this
MR. ROTHER: We've discussed it; we haven't come to a
conclusion yet. We certainly will respond to that request.
(2T85:16-86:11). On the third day of hearings before the
Board, the Board followed up on this issue:
CHAIRMAN BELIN: . . . But my question was, the application,
is it narrowing the type of resident that may stay in this
home, thus making the home more or less like a group home or
a veteran's home? It's not an open, free-will type
apartment situation anymore, is it?
MR. ROTHER: No, we're - we're looking to house
homeless veterans, who typically have PTSD, that's the
focus. . . .
VICE CHAIR RUIZ: So if you have a homeless veteran, which
I'm assuming there are going to be others that don't
have PTSD, they're not going to be able to live here,
according to your arguments?
MR. ROTHER: They typically do, and that's - we're
going to take homeless vets, but they - . . .
MR. ROTHER: If you look at the statistics, there are plenty
of homeless veterans. We're going to be able to fill this
facility very easily.
attorney for Yates suggested that the tenants would be
suffering from PTSD because there is a "connection"
between homelessness and PTSD, and the prospective tenants
would be coming from temporary shelters. However, he would
not definitely say that the prospective tenants (or what
percentage of them) would have PTSD.
(2T70:15-71:9). Mr. Rother acknowledged that not all
homeless veterans suffer from PTSD. (3T73:23-74:3).
another hearing date, Yates declined to confirm that the
residency of the project would be restricted to homeless
veterans, or, more pointedly, to homeless veterans with PTSD.
(Resolution ¶83). Eventually, during one of the later
hearing dates, Yates agreed to deed-restrict the property to
housing for veterans. (Resolution ¶165; 4T107:3-6).
represented that it purchased the property for $300, 000.
This representation contradicted the County's records,
which showed that the declared purchase price was $100, 000.
(DE 8-24; 24-26, at 5). Mr. Yates indicated that he knew that
the property was zoned as a historic district when he bought
it, and that the area was essentially zoned for residential,
private homes. (2T112:20-24).
property manager would be available on site twenty-four hours
per day, seven days per week. (Resolution ¶64; 2T
12:20-21). There would be three other employees at the
property: the CEO of the facility, a secretary, and a chef.
(Resolution ¶¶64, 144; 2T12:23-13:6). Four service
providers were also anticipated to be present at the property
at various times during the day. (Resolution ¶144;
property would have a commercial kitchen, a multipurpose
room, and a dining area in the common areas. (Resolution
¶¶ 12-13; IT 17:1-23). The property would be a
"home first model," which would prioritize
stabilizing the veterans' housing. (Resolution ¶14;
1T18:8-11). The facility, as a secondary aim, would also
offer support services, such as case management,
transportation, church services, and yoga. (Resolution
¶14; 1T18:12-18, 19:13-23). Mr. Yates indicated that
the residents would all be capable of handing the needs of
daily living independently. (2T110:21-111:2).
unit was a "studio" apartment and was designed for
either single or double occupancy. (Resolution ¶71;
2T46:25-47:6). The anticipated occupancy of the project was
thirty-six individuals within twenty-four units, plus a
manager in the remaining unit. (Resolution ¶71;
unit would have a kitchenette, bathroom, closet, and living
space. (Resolution ¶12; 1T16:21-23). The proposed
renovations sought to add 563 square feet of space to the
first floor; 726 square feet to the second floor; and 2, 333
square feet to the third floor. (Resolution ¶101;
3T93:7-18). Doran, RA (the architect) expressed his opinion
that there was no structural issue in adding a third floor
but acknowledged that he had not confirmed that opinion with
a structural engineer. (Resolution ¶116; 3T129:15-18).
Board also inquired as to the tenants' ability to store
groceries. (Resolution ¶68; 2T21:20-23:8). Absent a
variance, each unit would be required to provide 350 cubic
feet of storage space, aside from ordinary closet space.
(Resolution ¶106). Flax testified that the tenants would
be aware of the limited storage space, would be limited by
economics, and, presumably, would not be able to afford much.
(Resolution ¶68; 2T22:4-23:8). Flax postulated that the
commercial kitchen might have space for the tenants'
smallest proposed unit is 256 square feet, while the largest
is 595 square feet. (Resolution ¶102; 3T92:6-13). The
minimum square footage allowed under the land use ordinance
is 500 square feet for a studio apartment. (Resolution
¶106; 3T101:5-9). Notably, Coe, Yates's affordable
housing expert, testified that the State Housing and Mortgage
Finance Agency requires about 525-550 square feet for a
studio apartment in an affordable-housing unit. (Resolution
¶160; 4T86:16-87: 11). Of the twenty-five units,
twenty-one or twenty-two were below the square footage
requirement. (Resolution ¶107, 122; DE 24-5). The
average floor area per unit was 373.64 square feet.
RA (the architect) indicated that the sizes of the units were
dictated by the instructions he received from Yates. His
instructions were to supply a specific number of units,
without respect to the requirements of the land use
ordinance. (Resolution ¶¶108, 110; 3T108:16-20).
Doran further indicated that in his thirty years of
experience, he had never been asked to create units with such
small square footages. (Resolution ¶1H; 3T 117:3-8). He
stated that if minimum square footage requirements were
honored, only thirteen (not the proposed twenty-five)
conforming units could be created. (Resolution ¶113;
Board asked several witnesses about the sizes of the units,
and why Yates, who was planning to build an addition, could
not use the extra space created by the addition to expand the
room sizes. In response, Mr. Yates expressed that nursing
home rooms are required to be 80 square feet and that other
veterans lived in rooms that were 80 square feet.
(2T34:14-14, 36:1-13). He further indicated that the proposed
units were an "upgrade" and that he was hoping to
"maximize" the space for the greatest number of
veterans. (2T35:21-36:13, 53:13-24, 54:11-55:1). When asked
about the proposed size of the units, Flax replied that Yates
was limited by the existing building, and that the Board was
required to make a reasonable accommodation. (Resolution
parking, the evidence was that an asphalt driveway would
provide a total of eleven parking spots, consisting of nine
standard spots and two ADA/handicapped spaces. (Resolution
¶¶142-44; 4T52:24-53:7). The RSIS requires
forty-five spaces. (Resolution ¶145; 4T55:24-56:17).
position on parking changed over the course of the hearings.
First, Flax assured the Board that, based on "the
economic profile of the veterans," the tenants would not
be able to afford vehicles. (Resolution ¶63, 144;
2T25:1-12; 6T62:19-7). Indeed, he said, the residents would
not need vehicles in this urban area. (Resolution ¶79;
2T105:1-16). Doran P.E. suggested to the Board that the
tenants would be prohibited from having vehicles, presumably
as a condition of the lease. (4T54:4-5, 55:12-16). Finally,
Flax and Leoncavallo suggested that any tenant who did have a
vehicle would be required to arrange for parking at a
facility several blocks away from the property. (Resolution
¶63, 144; 2T25:1-12; 5T98:5-13; 6T62:19-7). The tenants
would also be permitted to have guests, potentially
increasing the occupancy on a temporary basis and adding to
the traffic and parking congestion at the property.
(Resolution ¶¶80, 215; 2T108:l-7).
members of the public testified as to existing parking
problems in the vicinity of the property and their potential
exacerbation if the project were approved. (Resolution
¶¶225, 227). Michaelson testified that the property
was located on a short block, that there were never fewer
than six cars parked on the street during the daytime, and
that as many as twenty-seven were parked there during the
evening. (6T28:11-14). He opined that the street could not
accommodate any more vehicles. (6T28:13-14).
public also raised concerns with the ability of emergency
personnel to traverse Central Avenue if parking became any
more crowded. (Resolution ¶227; 6T42:5-11). Members of
the public also expressed doubt as to Yates's ability to
restrict the prospective tenants' ownership of vehicles.
(Resolution ¶227; 6T42:12-17).
the concerns raised by HPC and the public, Yates did not
submit a traffic or parking study. Nor was a traffic or
parking engineer called as a witness to address this issue.
(Resolution Conclusions at 51, ¶12).
Yates proffered that the proposed tenants would be relying on
subsidies to pay rent. (Resolution ¶70; 2T43:24-44:9).
Upon prompting from his counsel, Mr. Yates, suggested that
the subsidized rents would be insufficient to permit Yates to
offer studio apartments that met the minimum square footage
requirement. (Id.). If the units were required to
meet the square footage requirements, the number of units
would be reduced from twenty-five to thirteen. (Resolution
¶113; 4T20:2-23). If so, then the subsidized rents would
not cover the mortgage debt for the cost of the proposed
improvements. (Resolution ¶74).
called Coe, an affordable housing expert, to address the
financial feasibility of the project. She testified that
Yates would need permanent financing and grant dollars to
develop the project, and HUD-VASH vouchers to operate the
project. (Resolution ¶157; 4T76:9-14). The
operating dollars from the HUD-VASH subsidies, she said,
would be used to pay debt service. (Resolution ¶157;
Coe's testimony, Yates submitted a fifteen-year operation
pro forma document, purporting to demonstrate the
financial viability of the project. (DE 8-24). The figures
therein included "department costs, construction costs
and what it proposes in terms of operating subsidies."
(4T72:22-24). The source of those figures, said Coe, was
Yates. (Resolution ¶¶161, 168; 4T72:22-24,
90:12-15). Mr. Yates was asked to disclose the underlying
basis for those construction, operating, and financing costs.
He declined to do so. (Resolution ¶¶ 166-168; DE
told Coe that the total development cost was $3.2 million, of
which $2.1 million was for construction costs. (4T73:10-12).
Coe testified that Yates anticipated receiving HUD-VASH
vouchers of $988 per unit, which would generate approximately
$284, 000 per year. (4T73:17-19). The HUD-VASH rent subsidies
for the twenty-four units would cover $1.5 million of the
$3.2 million development costs, and Yates would be required
to secure grants in order to cover the difference of $1.7
million. (Resolution ¶159; 4T74:9-18).
also indicated that Yates proposed to set aside $2, 500
yearly for its "replacement" reserves.
(4T89:22-15). A Board member expressed concern that such an
amount would be insufficient to maintain this historic
building, and Coe agreed. (4T90:6-11; 6T64:13).
Analysis by Historic Preservation Commission
reviews applications within historic districts to determine
whether renovations or improvements to a property are
consistent with standards within the district. (Resolution
¶¶ 129-30). The HPC also reviews requests for
variances within such districts. (Resolution ¶130). If
the proposed renovations meet the HPC's standards, it
will issue a certificate of appropriateness. (Id.).
reviewed the variances requested by Yates. (Resolution
¶132). HPC did not object to grandfathering the
nonconforming uses that were already in existence prior to
Yates's application-namely, the height and bulk
variances. (Resolution ¶132). However, HPC objected to
the new use and density variances, and recommended that the
Board reject Yates's application. (Resolution
¶¶133-34; 4T29:4-32:18, 32:16-18).
particular, Michelson objected to the request to increase the
number of units per acre. (Resolution ¶133; 4T31:2-7).
He further stressed that the large number of people residing
at the facility, plus staff, visitors, and other activities,
was not consistent with the ambiance of the historic district
or the core values of the City's Master Plan. (Resolution
¶134; 4T31:20-32:8, 132:11-15).
Yates provided a preliminary cost estimate for the
rehabilitation of over $ 1 million. He acknowledged that the
location of the property within the historic district
increased the renovation costs. (Id.; 2T58:24-59:4).
The Board asked why, then, Mr. Yates chose to pursue this
project in the historic district, when he could have chosen
to build his project in a zone that permits apartments and
did not require the additional expenditures associated with
renovating a historic building. (Resolution ¶75). Mr.
Yates replied that he enjoyed undertaking historical
renovations and opined that other buildings in the area were
non-conforming. (Id.; 2T114:3-115:13). The Board
rejected his lay opinion regarding the non-conforming
Need & Beneficial Use
provided evidence regarding the need for this type of
proposed property, as well as its potential beneficial use.
Board considered other locations available for this type of
property within the City. There are ten zones within the City
that permit apartment buildings. (Resolution ¶219).
Within a couple of blocks of the subject property, there are
higher density zones that permit apartment buildings.
(2T60:25-61:1). Additionally, the nearby town of Lyons in
Somerset County has veterans' housing available.
presented the testimony of Pastor Seth Kaper-Dale. He
testified about the development of eleven "garden
apartments," called All Saints Apartments, for
low-income, homeless veterans in Highland Park, New Jersey.
(Resolution ¶44; 1T105:8-106:9, 109:10; DE 25-2
(Highland Park Board of Adjustment, Resolution of Findings
and Conclusions, dated June 22, 2009) (hereinafter
"Highland Park Resolution") ¶12). The
"funding stream" that the Pastor received for the
apartments required that the property be used to serve
veterans. (1T135:18-20). All the residents of the apartments
were "referred . . . by the Veterans Administration
(VA') Homeless Services Unit." (Highland Park
zoning application submitted to the Highland Park Board of
Adjustment for approval of the All Saints Apartments
requested a density variance, a conditional use variance, and
preliminary and final site plan approval "to modify an
existing church and construct eleven (11) very low income
residential units along with office space" in a
"residential, multi-family/garden apartment zone."
(Highland Park Resolution). The Highland Park Board approved
the zoning application for All Saints Apartments. (Highland
Saints facility, which opened in 2011, was in an area zoned
for apartments, and did not require a variance for the size
of the units. (Resolution ¶¶47, 52; 1T106:10,
112:22-23, 115:16-19, 126:10-14; Highland Park
Resolution). The studio units were all over 500
square feet and complied with state standards for affordable
housing units. (Resolution ¶189; lT126:3-4; Highland
Park Resolution ¶ 15). Each unit has its own kitchen and
bathroom. (Resolution ¶47; 1T111:17-21).
All Saints Apartments initially opened, none of the residents
had vehicles; now, however, seven of the eleven residents
have vehicles. (Resolution ¶48; 1T118:16-21). On-street
parking demand in that area was "low" and parking
was "readily available." (Highland Park Resolution
¶ 11). The vehicles are parked on a public road.
also presented information concerning a City-owned property,
the Dudley House, which is a transitional rooming facility
for homeless veterans. (Resolution ¶124; 4T21:1-23:18).
Dudley House is not an apartment complex. It was formerly
used as a rehabilitation facility for persons recovering from
alcoholism. (4T24:20-25:2, 27:1-3). The square footage of the
units in the Dudley House is less than the minimum otherwise
required by the land use ordinance. (Resolution ¶125;
4T22:21:15-22:15). Unlike apartment units, the rooms at the
Dudley House do not have individual bathrooms or kitchens.
member of the public, Arne Aakre, testified regarding a
veterans housing project in Basking Ridge, New Jersey.
(Resolution ¶229; 6T46:21-48:15). The sizes of the units
in the Basking Ridge housing project met or exceeded the
City's square footage requirements for the apartment
units. (Resolution ¶229; 6T46:21-47:3).
testified as to his experience as a veteran and stated a need
for permanent housing for veterans. (Resolution
¶¶27-31). Pearson echoed that there was a need in
all New Jersey counties for the type of facility proposed by
Yates. (Resolution ¶38). Leoncavallo indicated that
Union County (where Plainfield is located) particularly needs
a veterans' apartment building. (Resolution ¶206).
Aside from these generalizations, however, Yates did not
present testimony regarding the number of homeless veterans
in Union County.
Crooks, and Dr. Evers testified as to the benefits of
veterans residing together in a communal setting. (Resolution
¶¶15-19, 28, 92; 1T24:17-25:7, 56:12-57:11,
58:19-59:15; 3T28:15-29:6). Cathcart likened the communal
living experience to a form of group therapy. (Resolution
Evers, an expert in clinical psychology focusing on PTSD in
the military, testified that veterans are disproportionately
represented in the homeless population. (Resolution
¶¶82, 85; 3T55:4-10). Approximately eleven percent
of homeless individuals are veterans and two-thirds of
homeless Iraq and Afghanistan veterans suffer from PTSD.
(Resolution ¶91; 3T26:22-25, 27:4-14). He noted that
PTSD was a spectrum disorder, affecting individuals in
varying degrees, and that there is a connection between PTSD
and homelessness. (Resolution ¶¶89-90; 3T39:16-18,
opined that the proposed use was "inherently
beneficial," and that it advanced several of the goals
outlined in New Jersey's Municipal Land Use Law,
see N.J. Stat. Ann. §40:55D-2, and in the
City's Master Plan. (Resolution ¶¶199-202).
However, he did not provide much specificity regarding the
manner in which the proposed project advanced those
statutorily enumerated goals. (Resolution Conclusions at 52,
further opined that the property was ripe for adaptive re-use
because of its dilapidated condition. (Resolution ¶204;
5T84:4-8, 92:4-7). Leoncavallo admitted that granting
these multiple variances might cause some detriment,
including an increase in foot traffic. (Resolution ¶210,
Apartments in the Historic District
presented evidence of other similar properties in the
district that did not conform to current zoning requirements.
Yates submitted an aerial view of the subject property, as
well as four nearby "apartment complexes."
(Resolution ¶181; DE 8-20). These four neighboring
properties were developed prior to the current zoning plan,
at a time when apartments were permitted in the area.
also submitted a second aerial view of the subject property
and eight surrounding "apartment conversions."
(Resolution ¶181; DE 8-21).Yates's attorney
and Leoncavallo suggested that the appearance of meters on
the outside of the buildings and cables, or possibly
telephone lines, suggested that the buildings were being
operated as multi-unit apartments. (See 5T15:5-17,
31:11-34:10; DE 8-20, 8-21; Resolution
did not confirm that the cables connected to the homes
represented actual working telephone lines. Yates also did
not obtain information from the building department or tax
assessor's office regarding the number of units in the
neighboring buildings. (Resolution ¶195). None of
the properties were on the same block as the subject
property. (Resolution ¶182).
City's Planning Director and Board Planner, William
Nierstedt, advised that any multifamily uses, to the extent
that they existed in the aerial depictions presented by
Yates, either (a) were illegal nonconforming uses or (b)
predated the code, i.e., were built before the area was zoned
as it is today. (Resolution ¶106, 183; 5T16:9-16,
18:19-17). In terms of the apartment
"conversions," Nierstedt indicated that he could
not recall that any of the identified properties had received
a multi-family use variance. (Resolution 1184).
further testified that he could recall two other properties
within the district that had filed applications with the
Board: one property had applied for an interpretation, and a
second had applied to convert a structure into a bed and
breakfast (Resolution ¶ 185; DE 1-2, at 61; 5T87:9-10).
owner of the subject property, before it was purchased by
Yates, had applied to the Board to permit its use as a
nursing home, which had closed in 2009. (Id.) On
July 13, 2005, the City had approved the nursing home zoning
application on behalf of another developer, CPR Holdings,
Inc. ("CPR"). (DE 24-16). At the property, CPR
operated a thirty-five-bed skilled nursing facility, known as
the Abbott Manor Convalescent Center. (Id.).
CPR's 2005 application sought to expand the property to
sixty beds. (Id.). The City granted that application
as a reasonable accommodation to permit the handicapped
residents to continue to reside in that facility.
(Id. at 39).
Comments during the Hearing
points to a series of comments that were made during the
hearing by Board members. These comments, it says, evince a
bias against veterans with PTSD.
biased comments, says Yates, arose in in the context of
testimony regarding the benefits of veterans living in a
group setting. [See, e.g., Resolution
¶¶15-19, 28, 92). When Dr. Evers was asked about
the benefits of veterans living together, he responded as
A. Different than other psychological conditions, the veteran
population comes in with an in-group/out-group thought
process. The in group is veterans. Veterans feel more
comfortable with other veterans. When I first started
treating people with PTSD, and veterans with PTSD, the first
thing I had to overcome was the fact that I only served in
the National Guard, and the National Guard, in the 1970s, was
not quite exactly the military. It was kind of like the Boy
Scouts with real guns, but they never let us have bullets,
because when you have bullets, you do bad stuff. That took a
while to get in with the population, because I was coming in
as an outsider. . . .
CHAIRMAN BELIN: And because you were not a combat veteran,
they had a - a reticence toward interacting with you?
MR. EVERS: Well, I - what you have to do is win the trust. As
a veteran, if I were a veteran provider, I would probably not
have to go over that first hurdle, that hurdle of winning the
trust. Once you go over that hurdle and you become okay,
you're trusted, then it's a little bit easier.
also points to the following exchange, which it says suggests
bias on the part of a Board member:
COMMISSIONER JORDAN: All right. So then a second question is,
if there's a trust issue with the vets trusting people
that are not vets, what would be the -would there be an issue
with them living in a community where it's just regular
MR. EVERS: When we're talking about the trust issue,
there's two things - and 111 go back to that. One is the
trust in treatment, which is part of what I was referring to,
I'm asking someone to tell me their deepest, darkest
COMMISSIONER JORDAN: So it's more the one-on-one type
MR. EVERS: One-on-one, and even group, because I was the
nonveteran in the group. When we think of people in society,
that was the goal, to have everybody - that's where they
came from, they grew up in the society, then, the society
decided to send them someplace, and ended up giving them
PTSD, and our goal is to kind of bring them back to
functioning in that society. The idea of other veterans just
facilitates that goal.
(DE 8-6, at 65-66; PBr at 12).
Evers discussed the treatment of veterans and noted in
particular that, compared to Vietnam veterans, recent
veterans tend to seek treatment much sooner. (DE 8-6, at 47).
In that context, Yates points to the following exchange as an
example of the Board's alleged bias:
MR. EVERS: Actually, for the Iraq veteran, who was not
ostracized as the Vietnam veteran was, it is better. These
guys are coming a little bit earlier, they're not waiting
until they've been out failing for 10 years before they
come for treatment, they're coming sooner. It's kind
of like that missile that launches, you know, if you catch it
right after the launch, it's only one degree off; if you
wait 30 years, you kind of miss the planet you're aiming
at. By catching the veterans younger, stabilizing them
quicker, we actually bring them back on course faster.
CHAIRMAN BELIN: Okay. See, were here trying to understand the
use. Right? And whether or not the use of this particular
residence is the best land use at this time. The added
condition of it being a focused group begs the question, are
there any concerns that we as a board should have of having a
group in an isolated - a voluntarily isolated environment,
where the trust is only amongst their small group until some
later period in time? Is there any concern to the community?
MR. EVERS: Okay. I can speak from my experience, being in the
same - my office is within three miles for the last 35 years.
I don't see that there has - been a concern in the
community. I see veterans that are not homeless and veterans
that are homeless; people that we've been able to help
get housing in all sorts of different ways, since we
don't have that much housing down by where I live anyway.
It's not -- would I be concerned if a veteran with PTSD
moved in as my neighbor? No.
CHAIRMAN BELIN: Okay. Do you think that that veteran would
MR. EVERS: I think, after he realized I wasn't blowing
the leaves on his lawn on purpose, and we had a cup of
coffee, we probably would be okay.
(DE 8-6, at 46-48; PBr at 12).
The Board's Denial of Yates's Application
conclusion of the hearing, the Board voted unanimously to
deny Yates's application. (6T58:79:10). The Board
memorialized this decision in a resolution that was adopted
on August 1, 2018. (DE 1-2).
denying Yates's application, the Board considered the
obligations imposed by federal civil rights statutes.
(Resolution ¶¶2-10). First, the Board concluded
that Yates had failed to establish the required nexus between
the requested accommodation and an established necessity for
providing handicapped individuals with an equal opportunity
to use and enjoy housing. (Resolution Conclusions at 45,
¶3 (citing Lapid-Laurel v. Zoning Bd. of
Adjustment, 284 F.3d 442, 459 (3d Cir. 2002))). PTSD is
considered a disability, and an individual with PTSD is
considered part of the protected class under the federal
statutes. However, the Board noted that while Yates agreed to
deed restrict the property to veterans, it did not agree to
limit housing to homeless veterans or, more pertinently, to
homeless veterans with PTSD. (Resolution ¶4).
addressing the need for such a facility, the Board noted that
there are ten zones within the City that allow apartment
buildings as a permitted use. (Resolution
¶¶5» 22). Moreover, the evidence established
that there are numerous residential zones within the City
that allow for the density proposed by Yates. (Resolution
¶5). The Board also noted that even if there were
apartments within the vicinity of the ...