Scerbo v. Board of Adjustment of City of Orange

• Decision Date: 30 November 1972
• Citation: 121 N.J.Super. 378,297 A.2d 207
• Parties: Italo D. SCERBO et al., Plaintiffs, v. BOARD OF ADJUSTMENT OF the CITY OF ORANGE et al., Defendants.
• Court: New Jersey Superior Court

Page 378

121 N.J.Super. 378

297 A.2d 207

Italo D. SCERBO et al., Plaintiffs, v. BOARD OF ADJUSTMENT OF the CITY OF ORANGE et al., Defendants.

Superior Court of New Jersey Law Division.

Nov. 30, 1972.

Thomas Grant Bernard, East Orange, for plaintiffs (Bernard, Netchert & Silverlieb, East Orange, attorneys).

Alfonso C. Viscione, Orange, for defendants Board of Adjustment of City of Orange, George Miles, Kevin Donnelly, Carl Zazzaro, William Cassini and Oliver Swenson, as members of the Board of Adjustment.

Barry R. Mandelbaum, Newark, for defendant D.A.R.E., Inc. (Mandelbaum, Mandelbaum & Gold, Newark, attorneys).

MILMED, J.S.C.

Is a residential narcotic rehabilitation and treatment center which is governed by the provisions of L.1970, c. 334 (N.J.S.A. 26:2G--21 et seq.) a 'hospital,' qualified as an 'institutional' use under the terms of the local zoning ordinance? Did the local zoning board have jurisdiction to grant a variance where the notice to neighboring property owners under N.J.S.A. 40:55--44 made no specific mention that a 'variance' was being sought? These are two of the principal issues to be determined in this action in lieu of prerogative writs.

Defendant D.A.R.E., Inc. (Drug Addiction Rehabilitation Enterprise, Inc.) seeks to operate within the City of Orange a narcotic and drug abuse rehabilitation and treatment center governed by the provisions of L.1970, c. 334 (N.J.S.A. 26:2G--21 et seq.). The essential facts are not in dispute. In the spring of 1971 it (D.A.R.E.) purchased the premises at 19 High Street in Orange, New Jersey, formerly occupied by the Y.W.C.A. The land is irregularly shaped, and the building is a three-story frame structure. In the fall of 1971 it submitted to the building inspector of the City of Orange plans for extensive alteration of the building. By letter of October 14, 1971 the building inspector advised, among other things, that it was his interpretation of the local building code,

* * * that the building when altered according to your plans, would meet the requirements of the Building Code of the City of Orange, for Institutional Uses.

This is to further advise you that the Building Department will issue a permit according to the plans submitted by you, subject to the provisions of an amendment to the Zoning Ordinance of the City of Orange number 1083--G13--M10, which we had discussed as of this date.

Application was thereupon made by D.A.R.E. to the Board of Adjustment of the City of Orange for approval of the issuance of a permit for the alteration of 19 High Street, Orange, New Jersey, for a residential treatment center pursuant to local zoning ordinance amendment 1083--G13--M10. The application sets forth a brief description of the premises ¹ and discloses that 'The lot size is less than one acre and the principal structure is located within 25 feet of side property lines.'

Notice was given by certified mail, return receipt requested, to the property owners within 200 feet of the subject property. The notice sets forth the time and place of public hearing before the board of adjustment 'for approval pursuant to Zoning Ordinance Amendment No. 1083--G13--M10 for the use of the subject premises as a residential treatment center for drug dependent persons,' and also a brief description of the premises owned by Drug Addiction Rehabilitation Enterprise, Inc. and located at 19 High Street, Orange, New Jersey.

After extensive hearings before the board of adjustment, the board on February 9, 1972 adopted its resolution, which is sought to be set aside in this action, granting a special exception (N.J.S.A. 40:55--39(b)) and variance (N.J.S.A. 40:55--39(c)) for the use of the premises as a residential drug rehabilitation center, a facility 'to fulfill the need for resident drug rehabilitation for all Orange drug dependent residents who would qualify and benefit from this form of rehabilitation.'

In its resolution the board found, in substance, that D.A.R.E. satisfies the definition of a hospital under the amendatory zoning ordinance 1083--G13--M10; that it is an institution for the rehabilitation of drug dependent persons; that it is a therapeutic community; that the existing building on the premises has been used as a residence since 1917; that 'it would be impractical and a hardship to insist on the side yard requirement as there would be no way to conform with the requirements of the ordinance'; that D.A.R.E. 'attempted to purchase additional property and has been refused'; that by reason of the exceptional situation and condition of the property, strict application of the lot size and side yard requirements of the ordinance 'would undoubtedly deprive the owners of the reasonable use of the property and result in exceptional and undue hardship upon the owners of the property' and be contrary to the public good; that there is a drug abuse problem in Orange; that D.A.R.E.'s drug rehabilitation program meets a pressing social need; that implementation of the educational program provided by D.A.R.E. would aid in combating the growing abuse of drugs; that D.A.R.E. maintains adequate safeguards, including the screening of proposed residents and the maintenance of a drug-free atmosphere, with frequent urine testing and half-hour bed checks; that fear that the general welfare, morals, health and safety of the surrounding neighborhood would be adversely affected has been unsubstantiated; that the City of Orange would not be acting 'for the common good if it allowed fear of the problem to hinder adequate and reasonable attempts at its solution'; that the relief applied for by D.A.R.E. 'can be granted without substantial detriment to the public good and will not be detrimental to the health, safety and general welfare of the community, and that the drug problem in Orange is real, critical and urgent and requires immediate attention'; that the premises are located in a residential area, as the term is used in amendatory zoning ordinance 1083--G13--M10; that D.A.R.E. has met the burden of proof imposed upon it under the terms of this amendatory zoning ordinance and N.J.S.A. 40:50--39(c), and that adequate notice was given to the neighboring property owners. By its resolution, the board granted the application by D.A.R.E. for the use of the premises as a drug rehabilitation center, as well as relief from the minimum lot size and side yard requirements of the amendatory ordinance, I.e. ordinance 1083--G13--M10.

Plaintiffs contend that an 'institutional' use is not permitted in the applicable 'B--3 High-Rise Apartment and Office District' in the municipality; that the proposed residential treatment center for drug dependent persons is not a 'hospital' qualified as an 'institutional' use under the terms of the applicable local zoning ordinance, I.e., ordinance 1083--G13--M10; that if the proposed center is an 'institutional' use, D.A.R.E., in regard to this facility, is governed by, and has not complied with, the provisions of N.J.S.A. 30:11--1 et seq., relating to the licensing and regulation of private hospitals; that the notice by D.A.R.E. to neighboring property owners under N.J.S.A. 40:55--44 was not adequate to provide the board of adjustment with jurisdiction to grant the variance; and that the action of the local board of adjustment in granting the special exception and variance was arbitrary, capricious and unreasonable. ²

It is undisputed that the property owned by D.A.R.E. at 19 High Street in Orange is located in a 'B--3 High-Rise Apartment and Office District' in the municipality. Article XIXA of the local zoning ordinance, which was added by amendment approved January 9, 1970, sets forth, among other things, the permitted and prohibited uses in this district. In specifying the uses permitted in the district, which include 'multi-family dwellings with a minimum height of six stories,' section 19A.1 declares that, 'This zone district allows the most intensive residential use in the City and business and professional offices.' Section 19A.2 prohibits in the district 'Combined apartment and office buildings * * * except that medical offices shall be allowed to occupy not over 10 per cent of the building floor space.'

Describing the area surrounding the subject premises at the initial hearing before the board of adjustment, Anthony Church, an architect testifying in support of the application by D.A.R.E., pointed out that the building at 19 High Street would be in line with the surrounding buildings, and that

From the street, as you face the building on the right-hand side is a high-rise brick apartment. To the left is the Orange Savings Bank, and across the street there is a doctor's office and there are stores. It is completely a commercial type area as far as that is concerned, and it completely blends as far as the area is concerned, and it would not be an eyesore as far as standing out as being an institution type building. There are commercial businesses, residences, and a high-rise, and it is completely a diversed area as far as that is concerned.

Ordinance 1083--G13--M10 of the City of Orange, approved May 6, 1964, referred to in the application of D.A.R.E. to the board of adjustment, also amends the local zoning ordinance. Section 1 defines 'Institutional Uses' as,

Non-profit institutions limited to churches, schools teaching academic subjects, hospitals, public libraries, museums, art galleries and city buildings.

Section IV of this amendatory ordinance provides that 'Institutional uses may be located in any business or industrial zone,' and that 'Said uses are also permitted in Any residential zone.' (Emphasis added). The same section sets forth certain requirements to be met by every institutional use permitted in the city after the enactment of the amendment, including that there be 'a minimum lot size of 1 acre,' and that 'No principal structure shall be located within 25 feet of any side property line.' The section also provides: that...