By a 4-1 vote, the Lawrence Township Zoning Board of Adjustment Wednesday evening (Nov. 14) denied – for the second time – an application for a use variance that would have allowed a controversial inpatient drug and alcohol detoxification center to open in a building on Federal City Road.
The dissenting board members said they believe that the proposed 38-bed facility’s residential nature and 24-hour, seven-day-a-week operating schedule are clear violations of the provisions of the township’s Municipal Land Use Ordinance and, as a result, the facility’s negative impacts on the community outweigh its benefits.
Developer John Simone, who owns the building at 100 Federal City Rd., said after the meeting that he plans to appeal the board's decision to Superior Court Judge Mary Jacobson.
“Back to the judge,” Simone said. “We’ll certainly file an appeal for all the reasons you can probably guess. We think that on appeal to the judge this will be overturned.”
It was earlier this year that Jacobson – in response to a lawsuit filed by Simone and Sunrise Detox, a Florida-based company that wants to run the inpatient facility – ruled that the zoning board was wrong when in June 2011, by a 4-2 vote, it decided the proposed detox center was not “inherently beneficial” under state law and, in turn, denied the variance application.
The board’s rejection of the variance application came after nine exhausting and often-heated zoning board hearings that featured testimony from supporters of the plan – who claimed that a need exists in the area for detoxification services – and those vehemently opposed to it, including residents of two adjacent housing developments who argued such a facility should not be located so close to residential neighborhoods and expressed concerns about traffic, noise, crime and other factors.
In sending the application back to the township zoning board for reconsideration, Jacobson ruled that the proposed detox facility should be considered “inherently beneficial” under the law and directed the board to rule on the application using a procedure known as the Sica balancing test.
Board members in September decided that no further public comment on the application, either written or oral, would be allowed and they would deliberate and vote on the remanded variance application using as their guide the 40 or so hours of previous testimony dating back to November 2010.
Voting against the application Wednesday night were Stephen Brame (board chairman), Peter Kremer, Frank Scangarella, and Bruce Kmosko, while Sam Pangaldi cast the lone vote in favor of the application. It was hoped that board member Leona Maffei would be able to attend, but she ultimately was unable due to a prolonged illness. Two other board members, Charles Lavine and Ed Wiznitzer, recused themselves due to conflicts.
At the start of Wednesday evening’s deliberations, Brame explained that the four-part Sica test required the board to identify the public interest that was at stake; identify any detrimental effects that could result from granting the variance application; determine if “making reasonable modifications or imposing reasonable conditions upon the application” could mitigate those detriments; and weigh the positive and negative criteria to determine if approving the application would cause a “substantial detriment to the public good.”
The five board members then took turns stating their positions on the matter, beginning with Kremer.
Noting that not all “inherently beneficial” uses are equal, Kremer said that in his view the potential good that could result from approving the application was tempered by the fact that the proposed facility would only serve patients who could afford to pay for its services
“What we have here is an inherently beneficial use, but one that serves a limited segment of the public, so that does scale back somewhat that strength or the power of that positive criteria because it meets a limited market segment and a more limited public good than some other uses would,” he said.
While Kremer acknowledged the neighbors’ concerns about traffic, parking, garbage and safety, he said they alone are not reasons to deny the application. More importantly, he said, “are the residential component that is part of the application and the 24-hour nature of the operation. Both of these are not permitted by current zoning.”
He noted that back in 2004 township council specifically voted to change the zoning designation for the parcel in question from Education, Government and Institutions (EGI) to Professional Office (PO).
“At that time, two council members stated specifically that any use would not be a 24-hour operation,” he said. “It’s not the role of this board to question the judgment of the governing body…. The purpose and intent of the governing body is that this parcel not be a residential parcel and it not be a 24-hour parcel.”
In an EGI zone, according to the Municipal Land Use Ordinance, public or private day/boarding schools, institution of higher learning, houses of worship, municipal uses, rehabilitation hospitals, residential health care facilities, museums and libraries are permitted, while in PO zones funeral homes, child care centers, government uses and offices of “recognized professions” such as medicine, social services, finance, accounting, real estate, insurance, law, engineering, and architecture are allowed.
“There really is no practical way to mitigate the detriments that I outlined – 24-hour operation and residential use,” Kremer continued. “The property either has residential use or not, and it’s either a 24-hour operation or not. There’s no way you can mitigate 24-hour use in a way that would be acceptable to anyone. This proposed use could not exist if it was not residential and it was not 24 hours in nature… I don’t really see any realistic mitigations or conditions that we could apply to this application that would reduce the negatives to an acceptable level.”
Scangarella agreed, saying, “I was also very challenged when it came down to trying to address the detrimental effect. Clearly, the reconciliation of accommodating Sunrise’s request on a 24-hour-a-day, seven-day-a-week basis in an existing professional use zone…I struggled with it and tried to find some way to mitigate that inconsistency but I was just unable to find some way to come to terms with it.”
“Clearly, some would benefit if this variance were granted, however I believe there’s a marginal benefit to the public since the poor, the indigent and others similarly situated will not have the opportunity to benefit,” Kmosko said. “The detrimental effect of the variance…that council transcript that I reviewed a long time ago where two elected council members from Lawrence Township assured the public there would be no 24-hour uses in a PO zone such as this is critical to me. They were elected and that’s what they stated and I don’t think that I have the power to override that.”
Brame also spoke about the parcel’s zoning. “For me, here’s the problem – the problem is that Section 416 of the Land Use Ordinance which addresses itself to Professional Office districts states the following: ‘The purpose of the Professional Office district is to provide for office and accessory uses on small lots on arterial roads to provide a transitional zone between residential uses and the impacts of high volumes of traffic. The PO district may be designated either as a base zoning district or as an overlay district in selected areas on the Zoning Map. When used as an overlay district, it is intended that professional office development mimic the size and scale of residential buildings and in its design use architectural elements common to adjacent and nearby residences.’ Section 416 enunciates the use. It talks about doctors’ offices. It talks about lawyers’ offices. It talks about government uses. It talks about child care centers. What it talks about is a less-intense use that is nestled, in this case, between two residential communities.”
By comparison, Brame said, Section 425 of the Municipal Land Use Ordinance addresses the various uses for Education, Government and Institutions.
“At one point in time, the tract in question was an EGI zone. But the [township council] made a conscious and knowing decision to abandon the EGI and impose a Professional Office district. And it wasn’t done yesterday. It was done in 2004,” he said. “So for a period of eight years the PO zone has been in existence, nestled between two residential communities, one of which is an over-55 community, where during those eight years one could assume that a prospective purchaser coming to that neighborhood would have consciously decided not to live near schools or hospitals or residential care facilities or such uses that are so intense.
“The PO district is a low-intensity district. And how does it enunciate low-intensity? Less than 24 hours in use. Yes, there are operations that exist within this particular PO zone that provide clinical services but they exist within a range of time of up to eight hours. Not 24 hours. They do not have high-intensity operations involving significant numbers of staff, of food up to 1100 meals served a week, of laundry services that are provided. That was the intention of the EGI zone,” Brame continued. “Clearly, not the legislative intent of our governing body in 2004 when it decided that the use should be a Professional Office use. This application does not enunciate a low-intensity use. It does not carry the day. And I can find no ameliorating or mitigating circumstances that would cause that condition to change. Why? Because at the very core of this operation is a 24-hour, high-intensity residential use…
“This is an important function to provide such services to individuals who are in need of such services. Our society cannot deny the fact there is a need for such services in the community,” he concluded. “The question is what is the community? It’s certainly not two residential communities that have between them a low-density use that did not anticipate after 2004 a high-intensity use. It doesn’t carry the day. And to try to find a way violates the very intention and scope of the legislature in creating such a use. It does violence to the zone. And I can’t find a way to redeem it. Does such an important function need to exist? Yes. But not here. It cannot exist in this PO zone, from my point of view. It must exist in an EGI zone. And our township provides EGI zones. Our township doesn’t discriminate against such uses. It just can’t happen here.”
Pangaldi, who cast the lone vote in favor of the application, argued that the proposed center’s positives outweighed its negatives.
“The judge ruled it is beneficial to the public to provide a detoxification center to individuals addicted to prescription drugs and alcohol. It is a great opportunity you can offer a person in this unfortunate position in their life. I feel it would be beneficial to have this center in place. This center will offer individuals that have insurance or cash the opportunity for medical assistance,” he said.
He noted that an inpatient facility would certainly be better than an outpatient facility, which is an allowed use in that zone and for which Simone would not need to obtain any variances.
“This is a less detriment to have this building being occupied the way Sunrise wants to operate than to have a walk-in, walk-out [treatment center] when every Joe Schmo is coming off the street,” Pangaldi said.
He unsuccessfully suggested that the board could alleviate many of the neighbors’ concerns by imposing conditions on the application such as having private security on duty at the detox center around the clock, installing a 6-foot tall privacy fence to shield the facility from the neighbors, enclosing the trash area, installing an air purifying system to reduce kitchen odors, limiting the times that deliveries can be made, and reducing the parking lot lighting at night.
The room, packed with a standing-room-only crowd of over 60 neighborhood residents and others, burst into a round of applause after the board voted and the application was rejected.
Simone admitted that he was not surprised by the board’s denial, though he did say he was perplexed by some board members’ descriptions of the proposed inpatient facility as a high-intensity use.
“There’s so much testimony on the record about how much of a less-intense use this is than what could be there as a 17,000-square-foot medical center that could be occupied by 20 doctors or more,” Simone said. “That would be a hugely intense use in terms of parking and traffic, in terms of the other issues they mentioned like garbage. So it’s hard to understand how they came to that conclusion when the 38 residents here would not be allowed to drive or have cars and it’s only the staff that can park. Our estimates are only one-third of the [parking] spaces approved for this building would be used.”
Simone’s attorney, Christopher Costa, said that their appeal will go back to Judge Jacobson, who retained jurisdiction over the case. He said she will evaluate whether the zoning board “made the correct decision.” If she decides the wrong decision was made, she can either overturn the ruling herself or send it back to the zoning board again if, for example, “she has a specific factual issue that she felt that they didn’t address properly,” he said.
Simone said he will not decide whether to go ahead with the allowed outpatient facility until a ruling is made on this newest appeal.
- Nov. 14, 2012: “Detox Center Decision Due Tonight from Zoning Board”
- Oct. 17, 2012: “Detox Center Reconsideration Postponed Until Nov. 14”
- Sept. 26, 2012: “Detox Center Decision to be Made by Zoners on Oct. 17”
- Aug 21, 2012; ‘Potential Conflict Delays Detox Denial Reconsideration”
- June 8, 2012: “Zoning Board Ordered to Reconsider Detox Center Denial”
- Sept. 20, 2011: Lawsuit Filed Over Denial of Variance for Detox Facility
- Aug. 19, 2011: Zoning Board Memorializes Decision in Detox Case
- Aug. 10, 2011: Developer Moving Forward With His Efforts to Open Outpatient Detox Facility in Lawrence Twp. Building
- June 23, 2011: Zoning Board Denies Variance for Detox Center
- June 22, 2011: Decision Due Tonight on Controversial Detox Center
- June 2, 2011: Public Comment on Detox Center Proposal Now Over
- June 1, 2011: Ninth Hearing Over Proposed Detox Center Tonight
- May 27, 2011: Still No Resolution in Case of Proposed Detox Center
- May 25, 2011: Public Gets Another Chance to Speak Out About Detox Center Proposal During Zoning Board Hearing Tonight
- May 13, 2011: Residents Speak Out Against Proposed Detox Center
- May 11, 2011: 7th Hearing on Controversial Detox Center Tonight
- April 27, 2011: Debate Over Proposed Detox Center Resumes Tonight
- March 19, 2011: Final Witnesses Testify on Behalf of Proposed Detox Center; 6th Hearing Before Zoning Board Set for April
- Feb. 9, 2011:
- Jan. 24, 2011: Debate Continues Over Proposed Rehab Center
- Dec. 23, 2010: More Hearings for Proposed Rehab Center