NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant Health Resources, L.L.C. (Health) obtained use and bulk variances and site plan approval from defendant Wayne Township Zoning Board (Board) to build an inpatient rehabilitation facility in Wayne Township. Plaintiff, Regency Nursing Homes (Regency), filed two complaints, later consolidated, in lieu of prerogative writs seeking to reverse the Board's decision. On December 10, 2013, the trial court dismissed plaintiff's amended complaint with prejudice.

Plaintiff appeals, contending the trial court erred by affirming the Board's decision to grant the use variance and a bulk variance that allegedly failed to allow Health to construct the required number of parking spaces at the proposed site. After reviewing the record, the briefs, and the applicable legal principles, we affirm.

I

Health seeks to build a three-story, 92,000 square-foot, short-term inpatient rehabilitation facility in the business zone of Wayne Township. Because this zone does not permit this use, in March 2012 Health filed an application with the Board for a use variance. Health also sought bulk variances and site plan approval in its application, but the application for the use variance was bifurcated and decided before the Board considered the other relief Health sought.

The Board held hearings over the course of three days on the application for the use variance. We briefly summarize the material evidence. Health's owner, William G. Burris, Jr., testified that he has been in the nursing home business for thirty years but, due to changes in the nursing home industry, decided to build a post-acute or subacute rehabilitation facility in Wayne Township. The proposed 124-bed facility would provide short-term, inpatient rehabilitation services to patients recently discharged from hospitals; Burris anticipates that most of those admitted would be orthopedic patients. He stated that hospitals have been referring patients to subacute facilities for rehabilitation for "a long time," and need facilities of the kind Burris intends to build so that patients can be properly rehabilitated and thus avoid readmission to a hospital.

The project plan includes a 15,000 square foot area for physical therapy. The centerpiece of the rehabilitation area is a pool in which treadmills can be easily submerged for a patient's use. Burris indicated that it was his understanding that using treadmills in the water enables a patient to move an afflicted area of the body without feeling pain. Burris testified that he chose the site because, among other things, it borders William Paterson University and he wants to make the facility "a teaching type facility." He has had meetings with the university about making the facility a "teaching arm for their kinesiology department."

The average stay in the facility is expected to be between thirteen to nineteen days. The facility will not be designed for and is not intended for long term care, such as a nursing home. He also testified the facility would be for profit, but would be Medicare and Medicaid certified.

Health's engineer and site-plan designer, Gordon Meth, testified that there would be additional traffic generated from the facility, but the quantity of traffic would be substantially less than that which would be produced from a permitted use. Meth also noted that the proposed project adhered to the bulk requirements of the business zone, with the exception of the floor area ratio and building height requirements.

Specifically, the floor area ratio would be.67 when the maximum permitted is.15. However, Meth pointed out that a majority of the facility's 131 parking spaces would be in an underground garage, making the facility less oversized than it otherwise would be for the site. Although the proposed height of the facility is 39.4 feet, Meth noted that the height is only 4.4 feet above the maximum permitted height of 35 feet.1 Further, the proposed facility not only borders William Paterson University but also St. Joseph's Hospital, both of which have taller structures on their respective properties.

Although Burris made it clear he was not going to operate a long-term care facility, Regency's expert health care planner, Martin Parker, testified that the proposed facility was a nursing home. He reasoned the facility was a nursing home because nursing homes can also provide subacute care. He did not address whether an entity that provides only subacute services over a period of less than three weeks can be regarded as a nursing home.

Parked contended that there was no need for the proposed facility because there are eight nursing homes in Wayne Township and the number of patients in these and in nursing homes in general has declined over the last several years.2 He also testified that the other nursing homes in the township can provide subacute care, including rehabilitation, and that in the township alone there are 300 subacute care beds.

Parker did not, however, provide the utilization rates of those 300 beds. In fact there was no evidence the need for subacute services has declined; moreover, Parker conceded the need for subacute care is not age-related. Further, there is no evidence any of the other nursing homes offer the specific kind of hydrotherapeutic rehabilitation Burris seeks to provide in his proposed facility.

At the conclusion of the hearing, the Board voted in favor of granting the use variance. In its resolution, the Board stated in relevant part:

The Board granted the use variance subject to, among other things, any site plan approved pursuant to N.J.S.A. 40:55D-49 and 52, and further directed the applicant to comply with all township ordinances and federal, state, and county "requirements."

One of Regency's contentions is that the hearing on Health's request for a use variance should not have been bifurcated from its application for bulk variances and site plan approval. Regency argued that the evidence adduced at the hearing to consider Health's application for bulk variances and site plan approval may have affected the Board's decision to grant a use variance. Thus, we briefly summarize the pertinent evidence adduced at the second hearing.

Health's site engineer, Bryan Vandergheynst, testified that the project would be in compliance with all business zone requirements with the exception of the proposed floor area ratio and the height of the building. He also noted that the new building would substantially reduce the rate of runoff that currently exists, and would eliminate steep man-made slopes and protect natural ones.

Health's expert planner, Christine Cofone, noted that the surrounding land uses were commercial and intensive, and that the university has multiple buildings on its property that are as tall as or taller than the proposed building. She testified the proposed facility would be consistent with the "character" of the area and would not be a "negative impact."

Further, although the floor area ratio would be.67, a portion of the structure would be underground, making the actual floor area ratio.48. But whether the floor area ratio were.67 or.48, she opined the size of the proposed structure would not cause a substantial detriment to the public good or to the zone plan because the storm water runoff would be less than what it is now and the traffic would be less than what a permitted use would generate. In addition, the impervious coverage would be reduced if the proposed structure were built.

Regency's professional planner, engineer Michael Kauker, conceded that the proposed use would be inherently beneficial. However, he opined the floor area ratio would cause a substantial detriment to the zone plan because it would be over four-and-a-half times the.15 permitted in the business zone. He acknowledged the university's buildings and the hospital are larger, but pointed out those buildings are on proportionately larger sites. Further, there are smaller buildings on other adjacent lots.

The zoning board approved Health's application for bulk variances and its site plan. In its findings Board noted, in pertinent part, that

Regency filed complaints in lieu of prerogative writs following the adoption of each resolution; both complaints were eventually consolidated. Following a hearing, the trial court affirmed the Board's decision to approve the variances and site plan Health sought.

In this appeal, Regency contends, among other things, that the Board: (1) failed to consider whether there was a need for another nursing home before finding that the use was inherently beneficial and thus its approval of the use variance was arbitrary, capricious and unreasonable; (2) improperly granted the use variance under the mistaken belief the proposed use was not a nursing home; (3) failed to make adequate findings that the proposed use would not substantially impair the intent and purpose of the zone plan and zoning ordinance; (4) improperly bifurcated from the application for a use variance from the other variances Health sought; and (5) granted a bulk variance that allowed only half of the parking spaces required for this use.

II

We apply the same standard the Law Division must apply in reviewing a decision of the zoning board. Bressman v. Gash, 131 N.J. 517, 529 (1993); D. Lobi Enters., Inc. v. Planning/Zoning Bd. of Sea Bright, 408 N.J.Super. 345, 360 (App. Div. 2009). Decisions of zoning boards constitute quasi-judicial actions of municipal administrative agencies, Willoughby v. Planning Bd. of Deptford, 306 N.J.Super. 266, 273 (App. Div. 1997), and they are presumed to be valid, Cell S. of N.J., Inc. v. Zoning Bd. Of Adj. of W. Windsor Twp., 172 N.J. 75, 81 (2002). "[A]n overriding principle of judicial review of variance decisions by boards of adjustment is that, assuming an adequate basis in the record for a board's conclusions, deference to the judgment of local zoning boards ordinarily is appropriate." Lang v. Zoning Bd. of Adj. of N. Caldwell, 160 N.J. 41, 58 (1999).

The question is whether the decision of the zoning board "`is supported by the record and is not so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion.'" New Brunswick Cellular Tel. Co. v. Bd. of Adj. of S. Plainfield, 160 N.J. 1, 14 (1999) (quoting Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adj., 152 N.J. 309, 327 (1988)). A court must not substitute its own judgment for that of the board unless there is a clear abuse of that discretion. Cell S. of N.J., supra, 172 N.J. at 81-82. The burden is on the challenging party to show that the board's decision was arbitrary, capricious, or unreasonable. Id. at 81; Smart SMR of N.Y., supra, 152 N.J. at 327. Further, "the Board `has the choice of accepting or rejecting the testimony of witnesses. Where reasonably made, such choice is conclusive on appeal.'" Kramer v. Bd. of Adjust., 45 N.J. 268, 288 (1965) (quoting Reinauer Realty Corp. v. Nucera, 59 N.J.Super. 189, 201 (App. Div.) certif. denied 32 N.J. 347 (1960)).

Less deference is given to a grant of a use variance. Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adj., 388 N.J.Super. 67, 75 (App. Div. 2006). "`[V]ariances to allow new nonconforming uses should be granted only sparingly and with great caution since they tend to impair sound zoning.'" Ibid. (quoting Burbridge v. Twp. of Mine Hill, 177 N.J. 376, 385 (1990)). To uphold a use variance, a reviewing court must find both that the board's decision meets the statutory criteria and is supported by adequate evidence. Ibid.

However, "[i]f a proposed use qualifies as an `inherently beneficial' use, the burden of proof of an applicant for a use variance is `significantly lessened' with respect to both the positive and negative criteria." Salt & Light Co., Inc. v. Willingboro Twp. Zoning Bd. Of Adj., 423 N.J.Super. 282, 287 (App. Div. 2011), certif. denied. 210 N.J. 108 (2012) (citing Smart SMR of N.Y., supra, 152 N.J. at 323). An inherently beneficial use is presumed to satisfy the positive criteria, and it does not have to satisfy an "enhanced quality of proof" for the negative criteria, as set forth in Medici v. BPR Co., 107 N.J. 1, 21-24 (1987). Ibid. (citing Smart SMR of N.Y., supra, 152 N.J. at 323). An inherently beneficial use is defined in N.J.S.A. 40:55D-4 as a use that is

But even if a use is found to be inherently beneficial, the board must still balance the benefits and burdens of the requested variance and use the following steps as a guide: (1) identify the public interest at stake; (2) identify the "detrimental effect that will ensue from the grant of the variance;" (3) consider whether the detrimental effect can be reduced by imposing reasonable conditions on the use; and (4) "weigh the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good." Sica v. Bd. of Adj. of Wall, 127 N.J. 152, 165-66 (1992); Bd. of Educ. of Clifton v. Zoning Bd. of Adj. of Clifton, 409 N.J.Super. 389, 441-42 (App. Div. 2009) (quoting Sica, 127 N.J. at 165-66). In addition, N.J.S.A. 40:55D-70 requires that an applicant must show that the variance will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.

Here, we initially note that there was ample evidence to support the Board's conclusion that the proposed use is not a nursing home or a long term care facility. Health intends to provide rehabilitation services to patients whose admission will not last longer than two to three weeks. Second, we have no quarrel with the Board's finding that the proposed use is inherently beneficial — a conclusion shared by Regency's own professional planner. There is no question this use is of a kind that is considered to be of value to the community because it fundamentally serves the public good and promotes the general welfare. See N.J.S.A. 40:55D-4. Similar to a hospital, Health seeks to provide care and treatment to patients, and it is not disputed this facility will be regulated by the New Jersey Department of Health. See N.J.S.A. 26:2H-1.

Further, based upon the proofs submitted there is support for the Board's finding that the use variance would not cause a substantial detriment to the public good or substantially impair the intent and purpose of the zone plan. The one detriment identified during the use variance hearing — that there will be an increase in traffic — can hardly be characterized as substantial when the traffic will be less than that caused by a permitted use. Even if the application had not been bifurcated and the evidence concerning the floor area ratio admitted during the second hearing had been considered during the first hearing, it is clear from the Board's findings in the second resolution that the use variance would have been granted.

We infer from its findings in the second resolution that the Board credited the testimony of Health's witnesses. In that resolution, the Board noted that any detriment attributable to the proposed floor area ratio is not outweighed by the benefits that would be realized from permitting the proposed use. Specifically, it found that the proposed use would be "less intense" than a permitted one and that the floor area ratio will be reduced by placing part of the parking garage underground. The Board also noted that the new structure would result in less run off and would preserve the natural slopes. Its conclusion that the bulk variances and site plan approval would not "negatively impact the public good, the zone plan nor the zone scheme of the area" are supported by the proofs submitted.

After carefully considering the record and the briefs, we conclude Regency's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.