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Yates Real Estate, Inc. v. Plainfield Zoning Board of Adjustment

United States District Court, D. New Jersey

July 30, 2019

Yates Real Estate, Inc.; Yates House for Military Veterans, Inc.; and John and Jane Doe, Plaintiffs,
v.
Plainfield Zoning Board of Adjustment; City of Plainfield, Defendants.

          OPINION

          KEVIN MCNULTY. U.S.D.J.

         This 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. (DE 14).

         In 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 residential use.

         Between 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 reasonable accommodation.

         By way 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.

         On 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 statutes.

         Now 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.

         I. Background[1]

         A. Yates's Application before the Zoning Board

         Yates 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).

         The 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).[2] 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)[3].

         In 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.).

         Yates's 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 ¶¶5-8).

         Yates 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).[4]

         Additionally, 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); 3T110:20-111:4).

         B. Hearings before the Zoning Board

         The 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[5] 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 ¶¶224-30).

         Mr. 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).

         The 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 Yates's attorney:

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 board.
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.

(3T7:24-9:5; 9:9-10:6).

         The 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).[6] Mr. Rother acknowledged that not all homeless veterans suffer from PTSD. (3T73:23-74:3).

         On yet 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).

         1. Subject Property

         Yates 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).

         A 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; 4T53:7-13).

         The 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).[7] Mr. Yates indicated that the residents would all be capable of handing the needs of daily living independently. (2T110:21-111:2).

         Each 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; 2T67:10-19).

         Each 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).

         The 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' groceries. (Id.).

         Yates's 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).[8] 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. (Resolution ¶122).[9]

         Doran, 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; 4T20:2-23).

         The 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 ¶69; 2T30:15-23).

         Regarding 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).

         Yates's 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).[10]

         Several 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).

         The 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).

         Despite 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).

         2. Financial Feasibility

         Mr. 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).

         Yates 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).[11] The operating dollars from the HUD-VASH subsidies, she said, would be used to pay debt service. (Resolution ¶157; 4T76:17-18).

         During 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 8-24; 4T111:9).

         Yates 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).[12]

         Coe 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;[13] 6T64:13).

         3. Analysis by Historic Preservation Commission

         The HPC 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.).

         The HPC 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).

         In 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).[14]

         Mr. 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 buildings. (Id.).

         4. Need & Beneficial Use

         Yates provided evidence regarding the need for this type of proposed property, as well as its potential beneficial use.

         The 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. (Resolution ¶25).

         Yates 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 Resolution ¶7).

         The 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 Park Resolution).

         The All 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).[15] 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).

         When 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. (Id.).[16]

         Yates 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. (4T25:17-26:3).[17]

         A 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).

         Crooks 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.

         Cathcart, 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 ¶¶15-19; 1T25:4-5).

         Dr. 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, 41:17-23, 42:15-22).

         Leoncavallo 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, ¶17; 5T69:20-94:12).

         He further opined that the property was ripe for adaptive re-use because of its dilapidated condition. (Resolution ¶204; 5T84:4-8, 92:4-7).[18] Leoncavallo admitted that granting these multiple variances might cause some detriment, including an increase in foot traffic. (Resolution ¶210, 212).

         5. Apartments in the Historic District

         Yates presented evidence of other similar properties in the district that did not conform to current zoning requirements.

         First, Yates submitted an aerial view of the subject property, as well as four nearby "apartment complexes." (Resolution ¶181; DE 8-20).[19] These four neighboring properties were developed prior to the current zoning plan, at a time when apartments were permitted in the area. (5T14:21-23).

         Yates also submitted a second aerial view of the subject property and eight surrounding "apartment conversions." (Resolution ¶181; DE 8-21).[20]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 ¶193-94).[21]

         Yates 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).[22] None of the properties were on the same block as the subject property. (Resolution ¶182).

         The 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).[23] 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).

         Nierstedt 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).

         The 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).[24]

         6. Comments during the Hearing

         Yates 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.

         The 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 follows:

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.

(3T28:17-30:2).

         Yates 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 neighbors?
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 secrets -
COMMISSIONER JORDAN: So it's more the one-on-one type thing?
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).

         Dr. 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 trust you?
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).

         C. The Board's Denial of Yates's Application

         At the 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).

         In 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).

         In 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 ...


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