Posted by: Patricia Salkin | May 27, 2016

NJ Appeals Court Finds the Fact the Height of a Nursing Home Would Be Slightly Higher than Permitted Did Not Invalidate the Board’s Decision to Grant Conditional Use Variance

Plaintiff Bacharach Institute for Rehabilitation, Inc., appealed from a December 11, 2014 order affirming defendant Galloway Township Zoning Board of Adjustment’s decision to grant defendant Health Resources of New Jersey, L.L.C. its application for, among other things, minor subdivision approval, preliminary and final major site plan approval, and a conditional use variance. During hearings before the Board on Health’s application, plaintiff argued that the nursing home was not and could not become a permitted use in the PCR district. Plaintiff further contended the nursing home could not even meet the criteria to become a conditional use under section 233–21(D), because the proposed height of the nursing home exceeded the two-and-a-half story height limitation in the NR conditional use regulation. On appeal, plaintiff argued the trial court erred when it affirmed the Board’s approval of Health’s application, because Health was required to obtain a use variance for the nursing home, not merely a conditional use variance, and that Health failed to show it met all conditions to obtain a conditional use variance.

The court noted that use-variance proofs attempt to justify the board of adjustment’s grant of permission for a use that the municipality has prohibited; however, proofs to support a conditional-use variance need only justify the municipality’s continued permission for a use notwithstanding a deviation from one or more conditions of the ordinance. Here, Health’s proposed nursing home met all but one condition to become a permitted use. Specifically, the proposed nursing home would be one foot higher or one-half story more than allowed under the conditional use ordinance. The court found that the failure to meet this one condition was inconsequential, if not de minimis, since no negative impacts would be realized from this minor height deviation. Accordingly, the fact the nursing home would be slightly higher than permitted under section 233–21(D)(3)(i) did not invalidate the Board’s decision to grant Health a conditional use variance.

Bacharach Institute for Rehabilitation Inc. v Galloway Township, 2016 WL 2888728 (NJ App. 5/2/2105)


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