PER CURIAM.
Plaintiff Bergen Passaic LTACH, L.L.C., appeals from a judgment of the Law Division dismissing with prejudice its complaint in lieu of prerogative writs. Plaintiff sought reversal of the decision of the City of Hackensack Zoning Board of Adjustment (the Board) denying variances and site plan approval so that plaintiff can build a high-rise long-term acute care hospital (LTACH) combined with a dialysis facility and adult daycare center in a residential zoning district near the Hackensack University Medical Center. We affirm the Law Division's judgment.
In June 2008, plaintiff submitted its application to the Board to build the proposed facility on 1.15 acres of property consisting of four lots located in the 300 blocks of Summit and Prospect Avenues. Plaintiff proposed to demolish three one-family houses on Summit Avenue designated as Lots 3, 4, and 5 in Block 344 on the then-current Tax Assessment Map of the City of Hackensack, located in an R-75 single-family residential zoning district, and also to demolish a fourth single-family house on Prospect Avenue designated as Lot 14 and located in the R-3 multi-family residential zoning district. As modified in 2009, plaintiff's proposal was to replace those houses with a nineteen-story, glass facade building to accommodate 120 beds for long-term acute care patients, 63 chairs for dialysis patients, and 180 beds for adult daycare clients.
Hospitals and dialysis facilities are not permitted uses in the two zoning districts of the subject property; adult daycare centers are a conditionally permitted use in the R-75 zone. Plaintiff sought a use variance pursuant to
The Board held hearings on twenty-two dates between April 2009 and January 2012. During that time, the Board permitted defendant Prospect Avenue Coalition, LLC, to intervene formally as an objector to the application. On the first hearing date, the Board permitted the Mayor of Hackensack and two City Council members to make statements. Plaintiff's attorney did not object. The mayor and one of the council members urged the Board to consider the concerns of residents fairly and diligently. The second council member expressed his opposition to the proposal because of its location.
The first witness for plaintiff was Richard Pineles, a principal of plaintiff and the owner of two nursing homes. Pineles testified about the need for the LTACH facility in Bergen County. One of his nursing homes, Prospect Heights Care Center (Prospect Heights), is located across the street from the proposed site, while Hackensack University Medical Center is a few blocks to the south. Patients of the proposed LTACH would be drawn from those facilities as well as nine other acute care hospitals within a ten-mile radius.
Pineles testified that an LTACH provides a higher level of care than a nursing home but offers fewer services than a hospital. For example, it does not have an emergency room or services for same-day surgery. LTACH patients stay twenty-five days or longer, while the average stay of a typical patient at a regular hospital is about five days. A July 17, 2008 certificate of need from the Deputy Commissioner of Health and Senior Services indicated a need for seventy-two acute care beds at plaintiff's proposed LTACH facility.
Also according to Pineles, Bergen County had six dialysis facilities, all of which were at capacity. The proposed dialysis facility would operate six days a week, from 6:00 a.m. to 5:30 p.m.
The proposed adult daycare center would provide medical care and supervision to elderly persons while their caregivers worked during the day. Although Bergen County had several adult daycare centers, none existed in Hackensack.
Pineles acknowledged that approximately ninety to one hundred vans would enter and exit the proposed facility each day with dialysis patients and adult daycare clients. He estimated there would be "somewhere between five and [fifteen] ambulances on an average daily basis."
Pineles expected that the proposed LTACH facility would employ more than 500 full-time workers. He believed that 413 underground parking spaces would suffice for staff and visitors. He acknowledged, however, that Prospect Heights had complied with the City's parking ordinance and yet its employees had to park off premises because of a parking shortage on that site.
Michael Szerbaty, a licensed architect, testified for plaintiff that the project included the creation of a park on the Summit Avenue side of the building, along with a U-shaped circular driveway for patient drop offs. A service driveway on Prospect Avenue provided access for trash compactor pick-ups, oxygen storage tank refills, and food deliveries. Parking for the proposed facility was located on Prospect Avenue in a five-story underground garage, built to a depth of seventy feet. Six spaces were reserved for medical passenger vans and ambulances, and four spaces for delivery vehicles.
When challenged on how the proposed building would fit in with the neighborhood, Szerbaty testified that the "predominantly glass facade" of the proposed nineteen-story building was not a feature shared by any nearby buildings. The apartment buildings on either side of the proposed building were each seven stories in height, but to the south on Prospect Avenue, there are a number of buildings between eighteen and twenty-one stories. Szerbaty conceded that the service deliveries and parking garage traffic would be visible to the adjacent residential buildings.
The Board also heard testimony from plaintiff's licensed professional planner, Joseph Burgis, who had evaluated the merits of plaintiff's application in accordance with the statutory criteria for a use variance,
Burgis also testified about the variances that plaintiff needed, stating that the project was an inherently beneficial use that satisfied the so-called positive criteria of the variance statute. He further noted that the project furthered the objectives of Hackensack's master plan by increasing the availability of health care to local residents, promoting job opportunities, and improving the quantity, quality, and availability of parks and open space.
Charles Thomas, Jr., a licensed civil engineer, testified for plaintiff that the proposed stormwater management system complied with local ordinances and state regulations pertaining to water quality and runoff. Thomas also stated that the City's project engineer confirmed there was adequate sewer capacity for the proposed project.
The Board's licensed engineer and planner, Gregory Polyniak, expressed concern about the lack of an underground water geotechnical investigation. Thomas believed such an investigation would become necessary only after the Board approved the project. Polyniak disagreed, stating that the Board needed to consider whether the potential deep excavation would negatively affect adjoining properties. The record before the Board contained a 2009 "Geotechnical Engineering Report" addressing some subsurface conditions and making recommendations for foundation support and other geotechnical aspects of the design and construction. No environmental studies or evaluations had been conducted at the time of the hearings.
In addition to a geotechnical investigation, Polyniak inquired about the lack of a phasing plan detailing how plaintiff intended to prepare the proposed site for at least two years of construction. Thomas stated that matter would be left to the discretion of the construction contractor that plaintiff would retain to build the project.
Eric Keller testified as plaintiff's licensed professional engineer with specialties in traffic and parking. He had prepared a traffic assessment study in 2009 based on traffic volume data manually collected in 2008 from four intersections near the proposed site during peak morning and afternoon hours. In addition, automatic traffic recorders collected continuous traffic volume data on Summit and Prospect Avenues for one week in June 2009. Keller concluded that, on a scale from A (best) to F (unacceptable), traffic was "at Level of Service D or better during the morning and afternoon peak hours except for two approaches at the Summit and Central Avenue intersection," which he graded E, "the threshold of acceptable operating conditions in an urban area." Keller testified that "the southbound Summit Avenue left turn operates at Level of Service F which means it has long delays." Keller believed that traffic conditions would remain at Level D if the project was not constructed, except that traffic at the two approaches at Summit and Central Avenues would further deteriorate in the future from Level E to F based on other growth in the area.
Next, Keller calculated trip generation, which he defined as "how much traffic is going to be generated by the proposed use." He did not consult traffic data for stand-alone LTACHs, dialysis facilities, or adult daycare centers because he believed that data overestimated traffic demands of plaintiff's proposed multi-purpose facility. No industry data existed for a multi-purpose LTACH, and no such facility was in operation. So, Keller relied on certain characteristics and assumptions that "were developed in discussion with the operator [Pineles] based upon staffing, patient and visitor activity associated with each of the three uses," as well as a survey conducted at Prospect Heights across the street.
He projected that the proposed facility would have 148 inbound trips and 27 outbound trips during the peak morning hour, and 19 inbound trips and 137 outbound trips during the peak evening hour. He compared the levels of projected traffic with and without the proposed facility and concluded there would be "little change in the average delay" on the roads adjoining the facility. He acknowledged "an incremental impact on the operational difficulties" of the roads but stated that the anticipated increase in traffic could be mitigated by reallocating pavement for the Summit Avenue left-turn lane and upgrading the traffic signal at the intersection of Summit Avenue and Central Avenue.
With respect to parking, Keller again consulted with Pineles and also relied on the same assumptions about employee and patient use of vehicles that he used to anticipate the volume of additional traffic. He did not consider the parking shortage at Prospect Heights or think that problem relevant to the proposed project. He found that, at maximum capacity and during shift overlaps of LTACH employees, 335 of the proposed parking garage's spaces, or 82%, would be used. During other hours, the parking garage would be approximately 67% occupied. Keller did not believe that the number of parking spaces required by the local ordinance for a regular hospital was applicable to the proposed LTACH because the latter provided fewer services. Nor did Keller think that the number of parking spaces required for a medical office building and an assembly hall were applicable to the other two uses of the proposed facility because the majority of dialysis patients and adult daycare clients would be transported by medical vans or already would be patients at the LTACH facility.
Keller testified that the proposed facility would have two on-site driveways leading to the parking garage and two other on-site driveways for service deliveries and patient drop-offs. Service vehicles would have to back into the service driveways. Larger delivery vehicles would block both lanes of traffic on Prospect Avenue for approximately two or three minutes while maneuvering to back into the service driveway.
Frank Miskovich testified as the Board's licensed professional engineer with specialties in traffic engineering and highway design. His engineering firm's traffic impact report was in essential agreement with Keller's traffic data. Miskovich also agreed with Keller that no industry data existed on the traffic associated with a multi-purpose facility consisting of an LTACH, dialysis services, and adult daycare center. However, some of Miskovich's trip generation assumptions and conclusions differed from those of Keller, such as the number of patients on average that a medical van would transport to the facility and how long the vehicle would remain in the parking garage to complete its task. Concurring with Keller that 84% of the employees would drive to work, Miskovich's estimates for inbound and outbound trips during peak hours were somewhat higher than Keller's.
Miskovich also used the alphabetic rating scale (A to F) to compare anticipated trip generation for the facility, comparing the numbers in the event that nothing new were built at the site and also with potential new residential construction that did not require significant zoning variances. Miskovich found that the levels of service around the proposed site would remain essentially unchanged, except "[s]ome increases in vehicle delay" at the intersection of Summit and Central Avenues in the afternoon peak hours. During the morning peak hours, Miskovich determined that traffic at the intersections of Summit and Central Avenues, as well as at Summit Avenue and Passaic Street, was already at Level of Service F, not D, as Keller had testified.
Miskovich opined that the project generated five to six times more traffic than a permitted residential use during the peak morning hour and four times more traffic during the peak evening hour. He predicted that the proposed use would generate "two-and-a-half times higher [traffic] than the permitted uses."
To estimate the amount of parking needed for the facility, Miskovich agreed there was no industry standard applicable to such a combined use facility. He relied on the parking requirements in the local ordinance applicable to a hospital, a medical office, and a social hall/community center. He concluded that 653 spaces were needed under Hackensack's ordinance. Miskovich also testified that, if the parking garage only had the number of spaces that Keller thought adequate, the garage would be between 92.6% and 98.8% occupied each day at 9:30-10:30 a.m. and 1:30-3:30 p.m., assuming that not all staff needed to use the garage. Miskovich testified that delivery trucks would present a hazard when backing into the facility and that the maneuver would require someone standing in the street and stopping vehicular traffic.
The Board also heard from neighbors and its own members regarding their personal knowledge of traffic problems in the area.
Plaintiff's expert planner, Burgis, identified "traffic, parking and truck movements" as relevant to the negative criteria of the variance statute that the Board had to consider. He testified that both Keller and Miskovich had concurred that the project would not substantially increase traffic. In his view, the local ordinance regulating parking spaces for a development was not applicable to the proposed combined use facility. Burgis identified potential mitigation measures for the project, including: staggering staff shifts, utilizing ten-patient medical transport vans, and changing light signalization as well as providing a turning movement at the intersection of Summit Avenue and Central Avenue. Burgis concluded that the requested use variance could be granted without substantial detriment to the public good and without substantially impairing the intent and the purpose of the master plan and zoning ordinances.
A local resident, represented by counsel, presented the testimony of her own expert witness in opposition to plaintiff's application. Stan Lacz, a licensed architect, engineer, and planner, testified that the project required a use variance as well as a height variance, a parking variance, and fifty-three bulk variances, many of which pertained to the parking garage that he believed must comply with the same bulk standards as the primary building. Lacz also believed the plan violated the 2006 International Fire Code, which he stated New Jersey has adopted, with respect to the required turning radius for a fire truck. Lacz concluded that 4.3 acres of land are needed for the proposed project to avoid bulk variances, while the lots under consideration are less than a third of that size. He testified that the proposed site did not provide adequate light, air, and open space because of the building's "very extensive lot coverage" and the inadequate lot width. According to Lacz, the proposed building also did not promote the free flow of traffic and did not create a desirable visual environment. Lacz opined that the proposal would create a substantial detriment to the intent and purpose of the master plan and zoning ordinances.
The Board's licensed engineer and planner, Polyniak, also testified, focusing on whether the application satisfied the negative criteria of
Regarding the neighborhood, Polyniak said the project would produce a "shadowing effect" and "could affect adequate light and air and open space of the buildings in the adjoining lots and the adjoining properties." He acknowledged the project's physical footprint was "smaller than most" of the footprints of the surrounding buildings, but he believed there were "issues with respect to lot area, lot width, height ratio with respect to front yard, rear yard, lot coverage, height ratio with respect to side yard and buffer zones, which all impinge on the adjoining properties."
Polyniak also thought it significant that Prospect Heights had inadequate parking, which suggested to him "that some of the assumptions that may have been made with respect to this facility[] may not be applicable for this project as a whole." He stated that the parking ordinance requirements for a hospital, a medical/dental office, and a community center were applicable to the proposed facility, and concluded that 608 parking spaces were needed or, alternatively, a reduction in "the overall size of the facility." Like Lacz, Polyniak concluded that the proposal would create a substantial detriment to the intent and purpose of the master plan and zoning ordinances.
To mitigate the project's detrimental effects, the Board proposed certain changes and conditions, many of which pertained to movement and parking of vehicles at the facility. Plaintiff agreed to remedy three of the Board's perceived detriments. Specifically, plaintiff would "eliminate the food delivery trucks from utilizing the ramp," raise the height of the parking garage entrance to "eliminate any passenger vehicle, other than vans ... from having to back out," and eliminate a truck bay to prevent the unsafe maneuvering of trucks in the garage. Plaintiff maintained that no further modifications were necessary.
On January 19, 2012, the Board voted to deny the application. By a resolution adopted on September 20, 2012, the Board found the proposed facility served an inherently beneficial use and, therefore, plaintiff had satisfied the positive criteria of the variance statute. However, the Board found some of Pineles's testimony not credible, in particular, about the number of LTACH beds needed in the region and the number of parking spaces required for the facility. The certificate of need obtained by plaintiff showed a need for 72 beds rather than plaintiff's original proposal of 144, which was subsequently reduced to 120.
Regarding parking, the Board did not find credible Keller's and Pineles's testimony that 413 parking spaces in the garage would suffice. Plaintiff had not produced any studies on the proposed three uses that justified such a significant deviation from the parking requirements of the City ordinance. No evidence demonstrated that the parking needs of an LTACH were less than a regular hospital, and the parking shortage at Prospect Heights across the street was a notable example of the parking needs of a facility with some similarities to the proposed project.
The Board rejected the application on the basis of plaintiff's failure to satisfy the negative criteria for the granting of use and bulk variances. The Board stated "the proposed 19-story building would be out of character in the neighborhood due to the structure's height as well as the proposed glass facade." The Board found:
The project would also create "ambulance traffic at all hours," and "[r]esidential neighbors would have their views disturbed by trucks and van deliveries, ambulances, and assorted commercial traffic and noises including, but not limited to, early-morning vans and large tractor trailers."
The Board determined that the site plan "would create numerous unsafe conditions, particularly the need for food delivery, oxygen delivery, and garbage trucks to back out into the street to exit the facility." Other detriments, including "sight distant conflicts" and the "narrow" Prospect Avenue driveway ramp, "are due to the very high intensity of the proposed, commercial use." Additionally, plaintiff "failed to show that the depth of the [proposed] excavation would not create problems due to the water table."
The Board stated that plaintiff did not agree to some of the conditions or modifications it had proposed to lessen the detrimental effects of the project. The Board concluded "that the detriments to the neighborhood and the zone plan outweigh the benefits of another hospital to be located in the City of Hackensack."
After the Board's denial, plaintiff filed its complaint in lieu of prerogative writs, which the Law Division heard in August 2013. By order and written opinion dated August 26, 2013, the court affirmed the Board's decision.
Having considered plaintiff's several arguments on appeal, we now affirm the Law Division's decision essentially for the reasons stated in Judge Carver's opinion of August 26, 2013. We add the following comments to amplify our decision.
Decisions of zoning boards constitute quasi-judicial actions of municipal administrative agencies,
When reviewing the decision of a zoning board, we apply the same standard as the Law Division.
The Municipal Land Use Law,
"If 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."
Despite the less demanding standard of proof, a zoning board is not bound to grant a variance for an inherently beneficial use. Rather, the board must balance the benefits and burdens of the requested variance using 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) "reduce the detrimental effect 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."
Here, the Board acknowledged that plaintiff satisfied the positive criteria because its proposed use is inherently beneficial to the public, but it denied the application based on its conclusion that the negative criteria of the statute were not satisfied. "The showing required to satisfy the first of the negative criteria focuses on the effect that granting the variance would have on the surrounding properties."
The Board concluded reasonably that plaintiff's proposed development is much bigger than the site would accommodate and would detrimentally affect the neighboring residential properties. It also concluded reasonably that the proposed development could not be reconciled with the City's master plan and zoning ordinances. Numerous bulk variances were required as well as the use variance for the facilities that were not otherwise permitted in the zoning district. We find nothing arbitrary, capricious, or unreasonable in the Board's conclusions.
Plaintiff contends the Board improperly rejected the testimony of its expert witnesses without competent expert testimony to the contrary. "[T]he Board `has the choice of accepting or rejecting the testimony of witnesses. Where reasonably made, such choice is conclusive on appeal.'"
Here, the Board in fact had contrary testimony from opposing experts, Lacz, Miskovich, and Polyniak, and it rationally explained its credibility decisions against some of plaintiff's experts. It found credible Lacz's and Polyniak's testimony about the detrimental effects of the project, including inadequate parking and unsafe vehicular circulation at the site, and the deprivation of light, air, and open space of neighboring residential properties. Furthermore, plaintiff's architectural expert acknowledged that the glass facade of the building would be different from any other nearby structure, and the Board could conclude that the design did not fit visually within the character of the area.
Plaintiff claims that the Board and the trial court erred in relying upon Polyniak's opinions about "the feasibility and potential traffic impact of the Project." Plaintiff cites a recent unpublished decision from this court in which we held that Polyniak was not qualified to testify with respect to traffic safety detriments of a proposed project and that his opinion on that topic should not have been considered.
On cross-examination in this case, Polyniak admitted that he was not a traffic engineer and did not intend to testify as an expert in that field. Unlike the unpublished decision, Polyniak's testimony in this case accepted the traffic engineering data of the qualified experts and focused on the on-site design features of the project. He did not contradict the testimony of the qualified experts but referred to them specifically as the basis for his testimony. He elaborated on the detrimental effects that the described traffic would have on the ability of drivers entering and exiting the facility, the general public using the adjacent streets, and the residents in the area. The safety and design features of the proposal that were the subject of most of his testimony regarding vehicular traffic are not the same as the conclusions about the volume of traffic and safety of drivers that he rendered in the other case.
Plaintiff also contends that Polyniak improperly relied upon the City's parking ordinance requirements for a hospital and other stand-alone facilities in estimating the parking needs of the proposed combined use facility. Polyniak's reliance on the City's parking ordinance was reasonable because the ordinance states: "For any use not specified . . . the parking requirement for the most similar use with regard to need for parking shall be used."
Next, plaintiff contends it was deprived of a full and fair hearing before the Board when the Mayor and council members were permitted to speak at the start of the hearings and influenced the Board's impartiality about the application. In rejecting plaintiff's claim of prejudice, the Board noted that plaintiff's attorney did not object to the mayor and councilpersons speaking at the hearing.
The statements made by the Mayor and council members were short and, for the most part, urged that the Board work fairly and diligently on the application. There is no reason on this record to conclude that the one council member's objection to the application improperly influenced the Board in adjudicating the matter impartially. Plaintiff has not shown reversible prejudice and error.
Plaintiff has raised other arguments regarding the procedural fairness of the proceedings before the Board and the sustainability of the Board's findings of fact. We do not find sufficient merit in the additional arguments to warrant discussion in a written opinion.
As we did in
Affirmed.
