Opinion NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS. Adam Ambielli and Lisa Ambielli, et al.

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1 Opinion NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS Adam Ambielli and Lisa Ambielli, et al. v. Township of Lebanon, Township of Lebanon Planning Board, and GenPsych, P.C. Decided: June 13, 2013 Docket No. HNT-L The Honorable Peter A. Buchsbaum, J.S.C. HISTORY This case involves the proposed opening of a 13-bed residential substance abuse treatment facility by GenPsych, P.C. ( GenPsych ) on property located at 405 Trimmer Road in the Industrial Zone of Lebanon Township. In order to open the facility in the Industrial Zone, GenPsych sought conditional use approval for the proposed facility as an institutional use. An institutional use is permitted as a conditional use in the Industrial Zone. The Lebanon Township Zoning Ordinance (the Ordinance ) defines institutional and public uses as nonprofit public or quasi-public institutions and uses such as houses of worship, public and private schools, hospitals, libraries, and municipally owned or operated buildings, structures or land used for public purposes. See Ordinance, The Ordinance further imposes five criteria for an institutional use: (a) The minimum lot area must be five acres. (b) All of the required off-street parking shall be located on the same lot as the principal use. (c) The maximum impervious surface of the lot shall not exceed that 1

2 permitted in the zone where located. (d) Each side yard shall be a minimum of 50 feet. (e) The front and rear yards shall be a minimum of 100 feet. Id. at B(8). Under the Ordinance, all conditional uses are subject to site plan approval. In addition to seeking conditional use approval, GenPsych also sought variance relief from the requirements under (3) of the Ordinance, which permits only a single sign for an institutional use. Prior to filing an application for the facility, GenPsych requested an informal hearing with the Lebanon Township Planning Board (the Board ) pursuant to the N.J.S.A. 40:55D The informal hearing took place on October 4, GenPsych then submitted its application for conditional use and site plan approval on November 16, See GenPsych s Trial Brief, Appendix, pgs Public hearings on the application took place on the following dates: February 27, 2012, March 20, 2012, April 24, 2012, May 10, 2012, June 19, 2012, July 17, 2012, July 23, 2012, July 31, 2012, and August 2, After these extensive hearings, the Board granted GenPsych s application for conditional use and site plan approval, as well as the requested bulk variance relief, subject to some conditions. This decision was memorialized in a Resolution adopted by the Board on October 16, Plaintiffs then filed a Complaint against the Township, the Board, and GenPsych to challenge the Board s decision. On January 22, 2013, this Court dismissed the Second Count of plaintiffs Complaint and dismissed the Township as a defendant. The Court also granted plaintiff leave to file an amended Complaint to challenge the Township s conditional use Ordinance. The plaintiff has subsequently done so in a Fifth Count which the Court has set for separate disposition in an Order dated April 26, However, in the course of writing this opinion the Court has come to the conclusion that it effectively disposes of the issues set forth in that Count. Therefore, this Opinion and the accompanying Order dispose of the entire case. 2

3 The matter was heard before the Court on the record below on April 5, October 4, 2011 Informal Meeting Plaintiffs challenge several aspects of GenPsych s application and approval process. Plaintiffs first assert that the informal concept review hearing held by the Board on October 4, 2011 was improper. Plaintiffs contend that the October 2011 informal hearing violates the intent of the Municipal Land Use Law ( MLUL ) since substantive aspects of the GenPsych applications were discussed without any notice to the public. See Pl. s Trial Brief, pg. 1. Plaintiffs assert that the MLUL s requirements, as well as the Ordinance s, mandate that any type in informal review in which the Board considers its conditional use jurisdiction or interprets the provisions of a local zoning ordinance requires public notice. Defendants GenPsych and the Board oppose plaintiff s initial argument regarding the informal meeting. Defendants first note that plaintiff s claim is procedurally improper because plaintiff did not supply the transcript of the informal meeting held in October 2011 in support of his challenge, as required by R. 4:69-4. Substantively, defendants assert plaintiffs challenge lacks merit because the informal meeting held prior to GenPsych s application was in accordance with the MLUL, which permits such informal review meetings. N.J.S.A. 40:55D Specifically, defendants note that the MLUL provides that upon request from an applicant, the Board shall grant an informal review of the concept plan that the developer intends to prepare and submit as an application for development. Defendants also rely on the decision in Stewart v. Planning Bd. of the Twp. of Manalapan, 334 N.J. Super. 123 (L. Div. 1999) in support of their argument that the informal meeting was proper and in conformance with the MLUL and the Ordinance. In Stewart, the Court held that two informal meetings that occurred before the developer s application was submitted with the planning board and deemed complete were proper, but the meeting that occurred after the application was deemed complete and without any public notice was improper. Stewart, 334 N.J. Super. at 129. Based on this holding in Stewart, defendants assert that the informal review application that occurred in 3

4 October 2011 was proper since it occurred before GenPsych filed its site conditional use and site plan application and before the application was deemed complete. See GenPsych s Trial Brief, pgs. 2-4; see also Board s Trial Brief, pgs Defendants assert that the public hearing which included a substantive review of GenPsych s application occurred with proper public notice months later in February As such, defendants assert that plaintiff s claim for violation of due process must be dismissed. Zoning Permit Plaintiffs next argument asserts that GenPsych violated the MLUL and the Ordinance by failing to seek approval from the zoning officer for a zoning permit at the outset of its application process. Plaintiffs argue that the MLUL allocates interpretation and enforcement of a zoning ordinance to a designated administrative officer who has the power to issue zoning permits under N.J.S.A. 40:55D-7. Plaintiffs contend that in this case, the Township has allocated this power to the zoning officer under of the Ordinance. Plaintiffs further state that under the MLUL, a zoning permit is required for any development and the zoning officer is thus the first municipal officer that an Applicant must seek approval from before filing an application for any land use approval. Plaintiffs assert that if GenPsych followed the proper procedure and sought a zoning permit from the zoning officer, the Zoning Officer would have ultimately determined that GenPsych s proposed facility did not qualify as a conditional use under the Ordinance and the application would not have moved forward to the Board. As such, plaintiffs assert GenPsych s application process was defective from its commencement with the informal hearing. Defendants respond that neither the MLUL nor the Ordinance require that a developer submit an application for a zoning permit to the zoning officer prior to submitting its conditional use and site plan application to the Planning Board. GenPsych asserts that the MLUL grants sole jurisdiction to the planning board to approve conditional uses under N.J.S.A. 40:55D-67. GenPsych asserts that the Ordinance recognizes the Planning Board s exclusive authority to approve conditional uses under (A)(5) because it permits the zoning officer to issue conditional use permits only after the Planning Board has 4

5 reviewed and approved the request for conditional use approval. GenPsych Trial Brief, pg. 5. GenPsych further states that the zoning officer s authority to issue other permits is conditioned upon obtaining a resolution of approval from the Planning Board or Board of Adjustment. Ordinance, (A)(2). Likewise, the Board Planner Michael Bolan stated during the hearing that a zoning officer could not issue a permit for a conditional use because he or she was not authorized to determine that the conditions were satisfied. July 31, 2012 Hearing, T98:19- T90:7. The Board also notes that although plaintiff s Planner John Madden testified that an Applicant is required to seek a determination from a zoning officer on whether a use is a permitted use or seek an interpretation of the Ordinance before filing an application, on cross-examination he acknowledged that he was unsure whether an Applicant was in fact legally obligated to seek an interpretation of the Ordinance from the zoning officer. Accordingly, defendants assert GenPsych was not required to file an application for a zoning permit prior to submitting its conditional use and site plan application. Interpretation and Application of the Ordinance To The Facility Plaintiffs also assert that the Board acted in an ultra vires manner by interpreting the language of the Ordinance. Plaintiffs contend that the Board s decision to grant conditional use approval along with site plan approval and bulk variance approval based on its determination that GenPsych s proposed residential substance abuse treatment facility fell within the definition of institutional use under the Ordinance was improper because the Board usurped the authority of the Zoning Board of Adjustment to hear and decide requests for interpretation of the Ordinance language. Plaintiffs rely on of the Ordinance which states that [t]he Board of Adjustment is granted the power to hear and decide requests for interpretation of the Zoning Map or [the Ordinance] pursuant to N.J.S.A. 40:55D-70b. Plaintiffs assert that since conditional uses are part of the Ordinance, the Board had no authority to interpret and apply the Ordinance to GenPsych s conditional use application and its interpretation is void. In the alternative, plaintiffs argue that even if the Board has 5

6 some inherent power to interpret the meaning of a word in the Ordinance, its decision is owed no deference upon review by this Court. Defendants assert that the Board had inherent jurisdiction to interpret and apply the Ordinance to GenPsych s conditional use application. GenPsych directs this Court to Mr. Bolan s statements during the July 31 st Hearing in which he said that the Board always engages in some form of language interpretation when examining the conditional use application under the Ordinance. Mr. Bolan explained that in order to determine whether a conditional use or site plan application may be approved, the Board must necessarily determine the meaning of the Ordinance in connection with the pending application. July 31, 2012 Hearing, T88:15-T89:18. In addition to Mr. Bolan s statements, defendants rely on case law in which planning boards have interpreted ordinances, and courts gave deference to those interpretations in recognition of the inherent authority of planning boards to make such determination, despite its de novo standard of review. See Fallone Property v. Bethlehem Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004); Pullen v. Twp. of South Plainfield Planning Bd., 291 N.J. Super. 1, 5, n.4 (App. Div. 1996); Wyzykowski v. Rizas, 254 N.J. Super. 28, (App. Div. 1992); DePetro v. Twp. of Wayne Planning Bd., 367 N.J. Super. 161, (App. Div. 2003), certif. den., 181 N.J. 544 (2004). The Board asserts that these cases demonstrate many occasions in which planning boards have interpreted ordinance definitions and provisions when examining applications. As such, the Board asserts it acted within its authority to interpret the meaning of the Ordinance while evaluating GenPsych s application. The Board s Classification of the Facility as a Hospital The most substantively significant dispute between the parties centers on the Board s conclusion that the Facility constitutes a hospital as contemplated under the Ordinance and the deference owed to this conclusion. Plaintiffs assert that GenPsych s proposed facility does not constitute a hospital, and is a for- profit residential substance abuse facility. Pl. s Trial Brief, pg. 15. Plaintiffs contend that was drafted to limit all institutional uses to public or quasi-public uses. In essence, plaintiffs read the Ordinance to state that institutional uses include: public or quasi-public 6

7 institutions such as: houses of worship, public and private schools, hospitals, libraries, and municipally owned or operated buildings, structures or land used for public purposes. This view differs from defendants interpretation of the Ordinance, which views the institutional uses under the Ordinance to include hospitals as a discrete category of permitted use. Plaintiffs further assert that the Facility does not fall within the definition of a hospital under the New Jersey Administrative Code. In the opening statements by GenPsych s attorney, Lloyd Tubman, Attorney Tubman relied on the definition of hospital in Section 8:43-G of the New Jersey Administrative Code: an institution, whether operated for profit or not, whether maintained by a governmental agency or not, which maintains and operates facilities for the diagnosis, treatment or care of two or more nonrelated individuals suffering from illness, and where emergency, outpatient, surgical, obstetrical, convalescent, or other medical and nursing care is rendered for periods exceeding 24 hours. N.J.A.C. 8:43G-1.2. Plaintiffs contend that the proposed facility is merely a voluntary residential substance abuse treatment facility that will not provide any emergency care necessary to constitute a hospital. While defendants assert the NJAC definition of hospital, if viewed in the broad sense, would encompass the Facility as a hospital, plaintiffs disagree. Plaintiffs further reject defendants reliance on Scerbo v Bd. of Adjustment of the Cty. of Orange, 121 N.J. Super. 378 (L. Div. 1972) in which the court determined that a residential drug abuse rehabilitation and treatment center did fall within the definition of a hospital, which was permitted as an institutional use under the East Orange Ordinance. Scerbo, 121 N.J. Super. at 388. In reaching this determination, the court referred to the definitions of a hospital in Black s Law Dictionary and various State statutes. Plaintiffs contend Scerbo is neither binding on this Court nor is it accurate since it was decided approximately 40 years ago under the old special exception standard that is no longer applicable. Plaintiffs instead assert the Board improperly and 7

8 inexplicably ignored Mr. Madden s testimony, which provided a comprehensive review and analysis of planning and zoning concepts that should have led the Board to conclude that GenPsych s proposed facility did not constitute as a hospital and is not an institutional use. Specifically, plaintiffs argue that GenPsych founder Dr. Odunlami s testimony never referred to the proposed facility as a hospital. After Dr. Odunlami testified, the next witness was Planner Brian Slaugh who also testified that the proposed use was an institutional use. Plaintiffs assert Mr. Slaugh did not provide his own independent analysis to justify his conclusion, and instead simply reiterated Dr. Odunlami s testimony. Plaintiffs further assert Mr. Slaugh s testimony acknowledged that he was not an expert on residential substance abuse facilities. Plaintiffs assert that hospitals and residential substance abuse treatment facilities are separately defined and regulated and thus cannot be interpreted to be one in the same. As such, plaintiffs argue that this Court, reviewing the interpretation of the Ordinance de novo, should not give deference to the Board s conclusion that the proposed facility is a hospital under the language of the Ordinance. Defendants contend that despite plaintiff s assertions, the Board properly interpreted the Ordinance and determined that the plain language of the Ordinance states that a private hospital, such as GenPsych s proposed facility, constitutes an institutional use. The Board asserts that the Supreme Court has previously stated that the primary goal in determining the construction of an ordinance is to determine the meaning and intent of the legislature. See DiProspero v. Penn, 183 N.J. 477, 492 (2005). The Board contends that if the ordinance language is clear and unambiguous, the language should be given its plain meaning without reference to extrinsic tools for interpretation. In this case, Defendants assert that institutional uses as defined under the Ordinance includes nonprofit public or quasi-public institutions and uses such as houses of worship, public and private schools, hospitals, libraries, and municipally owned or operated buildings, structures or land used for public purposes. Ordinance, Defendants assert that the statutory construction of the Ordinance indicates that public or private schools, hospital, etc. are institutional uses under the Ordinance. Defendants assert that this language is clear and unambiguous and thus requires no further 8

9 reference to extrinsic tools for interpretation. DiProspero, 183 N.J. at 492; see also Board s Trial Brief, pgs As such, defendants assert the only determination that remained for the Board was whether GenPsych s proposed facility fell within the definition of a private hospital. Defendants assert the Facility properly falls within the definition of a hospital. The Board notes that during the public hearings Attorney Tubman referred to the 2007 North American Industrial Classification System (NAICS), which was previously known as the Standard Industrial Classification Code (SIC). The Board notes that Attorney Tubman further highlighted the language of the NAICS, which stated that the purpose of the industry classification system was to ensure that data for statistical agencies related to establishments and the U.S. economy are uniform and comparable among Canada, Mexico, and the United States. See Board s Trial Brief, pg. 35. Ms. Tubman further referred to a Subsection 622, Hospitals of NAICS entitled Psychiatric and Substance Abuse Hospitals. The Board notes that the industry under this subsection comprises institutions licensed as psychiatric and substance abuse hospitals primarily engaged in the treatment and services for patients suffering from mental illness or substance abuse disorders. Id. The Board also notes that Ms. Tubman relied on several other sources that demonstrated that the Facility fell within the definition of a hospital, such as New Jersey Statutes and the 2004 edition of The Latest Illustrated Book of Development Definitions. GenPsych further relies on the NAIC and New Jersey statutory and administrative agency provisions for the assertion that the Facility constitutes a hospital under the Ordinance. Likewise, both defendants rely on Scerbo v. Bd, of Adjustment of the City of Orange in which the Court determined that a residential drug abuse rehabilitation and treatment center constituted a hospital within the institutional use category because drug addiction was a recognized disease by the State legislature. See GenPsych Trial Brief, pg. 15. As such, defendants contend the Facility is in fact a hospital and thus an institutional use. Constitutionality of Section and Severability 9

10 Plaintiffs also assert that the Township s conditional use provisions are invalid and unconstitutional. Section A, entitled Conditional Uses states the following: A. General. The Planning Board shall not approve a conditional use unless it finds that the use meets all the requirements of this chapter, does not substantially impair the use and enjoyment of surrounding properties, and does not substantially impair the character of the surrounding area and does not have any substantial adverse effect on surrounding properties. All conditional uses shall be subject to site plan review in accordance with Article IV of this chapter. Public notice of the application shall be filed in accordance with Where the regulations set forth a specific requirement or dimension for setbacks or other controls, the Planning Board may impose a higher or stricter control or limit if testimony before the Planning Board so warrants. Ordinance, A. The Board acknowledged that that negative criteria language of A was improper and thus did not apply the language when it reviewed GenPsych s application, pursuant to the Appellate Division s holding in Lincoln Heights v. Twp. of Cranford, 314 N.J.Super. 366 (Law Div. 1998), aff d o.b., 321 N.J. Super. 355 (App. Div.), certif. denied, 162 N.J. 131 (1999). Plaintiffs now assert that is also void because its Subsection B fails to comply with conditional use standards under the MLUL. The plaintiffs aver that B(8) of the Ordinance which imposes criteria for a conditional use is void because it lacks the specificity required by the MLUL since the conditional use criteria under the Ordinance are the same requirements for every use in the Industrial District. They claim in effect that such liberality is barred by the MLUL which they say requires conditional uses to be limited in scope. Plaintiffs contend only B(8)(e) establishes a particularized specification and standard as required by 10

11 the MLUL and even that criterion would essentially allow any 100 foot front and rear yard set back on any five acre lot in the District to be developed as a conditional use at every location in the district. Plaintiffs contend that a conditional use must be a use that is suitable to a zoning district but not to every location in that district. See Pl. s Trial Brief, pg. 49. Plaintiffs contend that the New Jersey courts have previously recognized that the nature of a conditional use is to have specific characteristics and special standards that would make their use particular to a particular location within the district. Coventry Square v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285 (1994). Plaintiffs assert that the Ordinance s failure to impose specific conditions makes the conditional use criteria constitutionally deficient in this case. Plaintiffs also assert that A as severed destroys the overall meaning and intent of the Ordinance, thus making the Board s Resolution void. Plaintiffs argue that when the Township adopted the Ordinance, it intentionally granted the Board with special authority to apply the negative criteria to the application and to impose higher control and standards. See Ordinance, A. Plaintiffs assert that the Township intended for this language to apply and the Board thus had no authority to cherry-pick which sections of the Ordinance it would apply. Plaintiffs argue that the Board had three options upon receiving an application for a conditional use: (1) apply the entire Ordinance as written; (2) decline jurisdiction pending an interpretation by the Board of Adjustment; or (3) advise the Township that was suspect as written to allow the Township to either amend the Ordinance if it agreed or disagree and thus require the Planning Board to apply the entire Ordinance as written. Plaintiffs assert the Board s decision to simply sever the negative criteria language was improper because it goes against the Township s intent. Plaintiffs also contend the Ordinance in this case is distinguishable from that found in Lincoln Heights where the ordinance language was deemed enforceable once severed. Plaintiffs first note that Lincoln Heights, as a trial court opinion, is not binding on this Court. 1 Plaintiffs 1 The Court notes that Lincoln Heights opinion was affirmed o.b. by the Appellate Division, so that this argument is thoroughly inaccurate. It is also noted that while plaintiffs attack the constitutionality of the ordinance, they really are challenging its validity under the MLUL. 11

12 further argue that in Lincoln Heights, Cranford had five specific standards for a conditional use, unlike the Township in this case, which has imposed only one allegedly inconsequential standard under B(8)(e). Plaintiffs assert that the ordinance in Lincoln Heights had discrete requirements for design standards and zoning standards. Plaintiffs assert in this case Chapter 400 of the Ordinance merely parrots extant zoning standards except for the more liberal set back requirement. Therefore, they argue A requires full application of the negative criteria language in order for the Ordinance to make sense. Plaintiffs argue that the Township likely would not have adopted (B)(8)(e) as written without expecting that A would apply in its entirety to limit the extent of such uses. As such, plaintiffs contend that the language was non-severable and the Board s approval is thus void. Separately, they contend that 411B is void as inconsistent with the MLUL s requirements for conditional uses. The Board asserts that it properly refused to apply the negative criteria language of the ordinance and properly approved the conditional use and site plan application based on the applicable provisions of the Ordinance. Defendants note that 1.17 of the Ordinance provides for severability. The Board further asserts that the issue of severability is a question of legislative intent and the severability clause of the Ordinance demonstrates the Township s intent to treat each section of the Ordinance as separate and distinct from any other section. The Board further asserts that its decision to sever the negative criteria language when reviewing GenPsych s conditional use application was consistent with the holding in Lincoln Heights. The Board notes that the negative criteria language in the Ordinance is similar to the language in the conditional use ordinance in Lincoln Heights in which the Court found was inapplicable because it improperly contravened the balance of power struck between the planning and zoning boards. See Lincoln Heights, 314 N.J. Super. at 387. The Board further rejects plaintiffs argument that the conditional use criteria are void because they are contrary to the MLUL. The Board asserts that the MLUL defines a conditional use as the following: 12

13 A use permitted in a particular zoning district only upon a showing that such use in a specified location will comply with the conditions and standards for the location or operation of such use as contained in the zoning ordinance, and upon issuance of an authorization therefore by the planning board. N.J.S.A. 40:55D-3. The Board also notes that the MLUL further states that a ordinance may allow conditional uses according to definite specifications and standards which shall be clearly set forth with sufficient certainty and definiteness to enable the developer to know their limit and extent. N.J.S.A. 40:55D-67. The Board asserts that the conditional use criteria of the Ordinance are clear and thus compliant with N.J.S.A. 40:55D-3 and N.J.S.A. 40:55D-67 and a conditional use application should be granted if all conditions are met. Exxon Co. USA v. Livingston Twp., 199 N.J. Super. 479, 477 (App. Div. 1985). The Board asserts plaintiffs argument that the criteria set forth in the Ordinance are void because they are too broad lacks any basis in the MLUL which leaves such decisions to the governing body. It is enough that they are definite. The Board contends that plaintiffs assertion regarding the 100-foot setback requirement under B(8)(e) is speculative and does not establish that the criteria for a conditional use are unconstitutional. The Board further asserts that the Facility successfully satisfies the five conditional use requirements set forth in the Ordinance under B(8). Condition #20 of the Resolution Finally, plaintiffs contend the Board acted in a ultra vires manner by imposing Condition #20 on use of the site. Condition #20 requires that [the Facility] shall be 13 bed facility, for voluntary patients, with insurance coverage. The facility shall not render any outpatient services, and attendance at any of the facility meetings, including meetings featuring outside speakers will be limited to patients and staff only. Also, visitation at the facility will be held 13

14 only on Sundays and limited to family members of the patients. See Resolution, pg. 74. Plaintiffs argue that these conditions deviate from the conditional use criteria established under (8)(e) of the Ordinance. Plaintiffs further argue that the Board lacked authority to impose its own conditions upon approval of a conditional use. Plaintiffs also assert that although the Board claims it did not apply the negative criteria language, Condition #20 is a result of the concerns raised during the public hearings as they related to compliance with the negative criteria. Particularly, plaintiffs assert the concern for referral of offenders for treatment at the Facility was raised, and thus the Board mandated that the patients must voluntarily admit themselves. Individuals were concerned about the type of people who would be treated, and this was the basis for the Board s imposition of the insurance requirement. Plaintiffs note that individuals passionately opposed the AA and Narcotics Anonymous meetings on the site, and thus the Board barred outpatient services. Finally, plaintiffs note that individuals expressed concern for the amount of visits to the site, and the Board thus limited visits to Sundays and by family members only. Plaintiffs contend that this conduct indicates that the Board did in fact apply the negative criteria language. Plaintiffs also contend the Board s imposition of Condition #20 also usurps the State s regulatory authority to impose rules and regulations over GenPsych as a licensed residential substance abuse treatment center. Plaintiffs contend such rules and regulations should be determined by the New Jersey Division of Addictive Services. Defendants reject plaintiffs assertions and argue that the Board has long since had the inherent authority to impose conditions on its conditional use approval. Defendants rely on the Appellate Division s holding in North Plainfield v. Perone, 54 N.J. Super. 1, 8-9 (App. Div. 1959) in which the Court concluded that the board was justified in imposing certain conditions on its approval in order to find that the requirements for approval had been met. Defendants assert that the Board in this case simply imposed valid conditions to approval that were directly related to the site plan and necessary to assure proper approval of the conditional use. 14

15 Legal Analysis: In Jackson Holdings, LLC v. Jackson Twp. Planning Bd., 414 N.J. Super. 342, 342 (2010), the Appellate Division was faced with determining the validity of a zoning ordinance as well as the reasonableness of the board of adjustment s decision. The Court held that when a trial court is determining the reasonableness of a decision by a planning board or board of adjustment, and there is a legitimate question as to the validity of the conditional use ordinance in dispute, the trial court must first determine whether the ordinance is valid before proceeding to review the board s decision. Jackson Holdings, 414 N.J. Super. at 350. However, the Court further stated that A party to an action challenging a final decision of a planning board or board of adjustment should not be allowed to unnecessarily complicate an otherwise straightforward review of agency action by raising a spurious challenge to the validity of the zoning ordinance. Thus, a court is only required to compel joinder of the governing body if it makes a preliminary determination...that there is a substantial question as to the validity of the part of the zoning ordinance under which the challenged land use approval was granted. Id. at 351. After having considered the matter in light of the parties briefs, the Court has determined, for reasons more fully set forth below, that it can consider the Ordinance s validity in this single opinion and does not need to defer its evaluation of the conditional use approvals. Given that the parties largely dispute the Board s interpretation of the Ordinance and its decision to deem the Facility a hospital, this Court will first address these issues before determining the other issues addressed by plaintiffs and defendants. The Board Had Authority to Interpret the Language of The Ordinance: 15

16 Section of the Ordinance defines institutional and public uses as nonprofit public or quasi-public institutions and uses such as houses of worship, public and private schools, hospitals, libraries, and municipally owned or operated buildings, structures or land used for public purposes. During the informal concept review meeting, the Board addressed whether the Facility could be considered as an institutional use. During the public hearings, GenPsych argued that the Facility constituted a private hospital use, which falls within the definition of an institutional use. The Board ultimately concluded that the Facility was in fact a private hospital, and such an institution constituted as an institutional use under the Ordinance language. In reaching this conclusion, the Board concluded that the ordinance language classified permissible institutional uses with the phrase such as by setting forth examples of various types of uses. See Resolution, pg. 56. The Board further found that descriptions of the uses set forth were cumulative in nature in describing the various uses, which include nonprofit public and quasi public institutions, and uses such as public and private schools, hospitals, etc. Id. The Court on its own agrees with this interpretation of First, during the public hearings, the Board s planner Mr. Bolan specifically testified that the Board regularly determines the meaning of a word or words in the Ordinance in conjunction with or incident to review of a pending application. See July 31, 2013 Public Hearing, T88:15-T89:18. Mr. Bolan further provided instances in which the Board has interpreted the meaning of a word before determining whether the Applicant would move forward as a conditional use. Id. Furthermore, the Appellate Division has held that the planning board has the inherent jurisdiction to determine the meaning of an ordinance when reviewing a pending application because it, along with zoning boards, have always had to interpret the meaning of a zoning ordinance in connection with and incident to applications for other relief. William M Cox & Stuart R. Koenig, New Jersey Zoning and Land Use Administration 129 (2012 Ed., Gann Law Books); Fallone Prop. V. Bethlehem Planning Bd., 369 N.J. Super. at Thus, the Board was within its authority to interpret the language of the Ordinance to determine whether a private hospital fell within the definition of an institutional use. 16

17 As such, although a court reviews construction of an ordinance de novo, deference is given to a municipality s informal interpretation of its ordinances. Fallone, 369 N.J. Super. at 561. In Fallone, the Appellate Division stated that planning boards are granted wide latitude in the exercise of the delegated discretion due to their peculiar knowledge of local conditions. Id. (quoting Burbridge v. Mine Hill Tp., 117 N.J. 376, 385 (1990)). In this case, even if the Court did not give deference to the Board s decision, the plain meaning of the Ordinance language would produce the same conclusion the Board reached. The Ordinance s definition of institutional uses includes nonprofit public or quasi-public institutions and uses such as houses of worship, public and private schools, hospitals, libraries.... Contrary to plaintiffs interpretation, the Ordinance s use of the language and uses such as establishes that the uses that follow are not held to the nonprofit public or quasi-public institution standard and can thus be public or private institutions (emphasis added). Among these permissible public or private institutions uses is a hospital. Thus, the Board correctly determined that the plain language of the Ordinance permits a private hospital as an institutional use. Next, this Court will examine whether the Facility constitutes a private hospital that is an institutional use entitled to a conditional use permit. The Board Properly Determined that GenPsych s Facility Constitutes a Hospital Under the Ordinance: In determining that the Facility constitutes a hospital, the Board relied on several sources, including New Jersey case law and statutes, reference books, and testimony about the characteristics of the Facility. An examination of these sources, as well as testimony from various witnesses during the public hearings, leads this Court to same conclusion. In this case, particularly helpful is the holding in Scerbo where the Court determined that a narcotics rehabilitation and treatment center was a hospital and qualified as an institutional use under the local ordinance in place at that time. Scerbo, 121 N.J. Super. at 388. In Scerbo, the local ordinance defined an institutional use as non-profit institutions limited to churches, schools teaching academic subjects, hospitals, public libraries, museums, art galleries and city 17

18 buildings. Id. at 384. The Court also noted that the Black s Law Dictionary defined a hospital as an institution for the reception and care of the sick, wounded, infirm and aged persons. Id. at 386. Given that drug addiction was recognized as a disease by the State Legislature and the rehabilitation center sought to treat this disease, the Court concluded that the treatment center constituted a hospital. In this case, the Facility is similar to the drug abuse rehabilitation center in Scerbo. Dr. Odunlami testified that the proposed residential substance abuse facility would be a private voluntary treatment center that provides respite for patients suffering from substance abuse as well as continuous treatment for patients with mental health issues and substance addiction. See February 27, 2012 Hearing, T12:13-T13:3. The Facility would be a 13-bed facility run by doctors, with one full-time doctor and nursing staff on duty 24 hours a day. Additional personnel, including two therapists, a mental health administrator, and security staff, would also be present on the premises during normal business hours. Dr. Odunlami further testified that the Facility was meant for individuals who are not forcibly institutionalized but who should not be at home. The Facility was designed to create a rehabilitation program that involves the patient s family so as to provide patients with the support they needed and the comfort of a helpful surrounding community. Id. at T90:1-20. The Facility would not be locked, although patients would be prohibited from leaving the premises once admitted. Id. at T17: Furthermore, the Facility would only be open to adults with health insurance. Id. at T30: Additionally, the Facility would not accept patients with acute conditions such as schizophrenia or bipolar disorder. Id. at T40:19-T42:7. Plaintiffs reject defendants reliance on Scerbo because it is non-binding and distinguishable in that the underlying use in that case was permitted, not a conditional use in the zone as is the case with the Facility. Furthermore, plaintiffs assert Scerbo was decided 40 years ago under the old special exception standard. Plaintiffs also assert that the local ordinance in Scerbo limited the institutional uses such as a hospital to non-profit institutions. Plaintiffs contend that the proposed for-profit, insurance-only Facility in this case cannot constitute as a hospital under the Ordinance, as the 18

19 Ordinance s definition of a hospital as an institutional use differs from the definition found in Scerbo. Plaintiffs arguments regarding Scerbo are unpersuasive. Although Scerbo is not binding on this Court, the reasoning remains sounds and applicable in this circumstance. Like the drug rehabilitation center in Scerbo, the proposed facility in this case would treat patients suffering from substance abuse. Such substance abuse includes an addiction to drugs or alcohol, which has been recognized as a medical disease. Furthermore, like the rehabilitation center in Scerbo, the Facility seeks to create a therapeutic community in order to gear patients away from their addictions. See Scerbo, 121 N.J. Super. at 381. The Scerbo Court s determination that the drug rehabilitation center constituted a hospital is instructive in this circumstance, given the similarity between the two facilities and the purpose of the facilities. 2 In addition to this case law, reliance on other resources defendants supplied also convinces this Court that the proposed facility constitutes a hospital. As noted above, the NJAC defines a hospital as an institution, whether operated for profit or not, whether maintained by a governmental agency or not, which maintains and operates facilities for the diagnosis, treatment or care of two or more nonrelated individuals suffering from illness, and where emergency, outpatient, surgical, obstetrical, convalescent, or other medical and nursing care is rendered for periods exceeding 24 hours. N.J.A.C. 8:43G-1.2. The Facility obviously falls within this definition, as it is a for-profit institution operating for the treatment or care of two or more nonrelated individuals 2 The Court also rejects plaintiffs claim that the change from special exception to conditional use affects Scerbo s analysis. No basis is given for the assertion that this change in terminology makes a substantive difference herein. In fact, conditional uses if anything may be more approvable than the former special exceptions which more had the character of uses permitted by variance than as of right if the conditions were met. 19

20 suffering from illness. The Board also reviewed the NAICS, an industry classification system that facilitates the collection, tabulation, presentation and analysis of data relating to establishments and ensures that data about the U.S. economy published by U.S. statistical agencies are uniform and comparable. See Exh. A-33, pg. 99. Plaintiffs relied on NAICS for the assertion that the Facility does not constitute a hospital. There is no reason why the NAICS, a classification system meant to address data related to the U.S. economy, should apply to land use classifications and zoning ordinance interpretation. However, if the NAICS is relevant in the land use context, the system classifies inpatient substance abuse treatment centers as hospitals. Subsection entitled Psychiatric and Substance Abuse Hospitals states that this industry is comprised of establishments known and licensed as psychiatric and substance abuse hospitals primarily engaged in providing diagnostic, medical treatment, and monitoring services for inpatients who suffer from mental illness or substance abuse disorders. See Exh. A-23, pg Thus, the NAICS deems substance abuse facilities engaged in treating and monitoring inpatients suffering from mental illness or substance abuse disorders as a substance abuse hospital. This subsection also cross-references Subsector , entitled Residential Mental Health and Substance Abuse Facilities. This industry is comprised of establishments primarily engaged in providing residential care and treatment for patients with mental health and substance abuse illnesses. Id. at pg As described above, this falls within the characteristics of the Facility. The Board reasonably relied on the definition of hospital under the NJAC and well as the classifications established under NAICS to conclude that the Facility was a private hospital. The Court has reached the same conclusion. Plaintiffs opposition focuses largely on the Facility s for-profit nature and the lack of emergency care that a hospital typically provides. During trial, plaintiffs even likened the Facility to a day spa. The NJAC definition of hospital does not limit a hospital to whether it provides emergency care or whether it is nonprofit. The NJAC s definition of hospital includes a forprofit institution that operates for the treatment of two or more unrelated individuals suffering from an illness and where medical and nursing care...for periods exceeding 24 hours. N.J.A.C. 8:43G-1.2. The Facility is an in- 20

21 patient substance abuse treatment facility maintained and operated by doctors, nurses, and licensed therapists for the purpose of treatment and monitoring of services for its patients suffering from mental illness or addiction issues. This satisfies the definition of hospital under the NJAC and the Ordinance. Furthermore, when viewed in conjunction with the Court s analysis under Scerbo, this Court can only conclude that the proposed facility constitutes a private hospital institutional use under the Ordinance. The Ordinance is Severable: The Board determined that the negative criteria language and the vesting of authority in the Board to impose higher standards under A was inapplicable and thus did not apply it when reviewing plaintiff s application. Section A, entitled Conditional Uses states the following: A. General. The Planning Board shall not approve a conditional use unless it finds that the use meets all the requirements of this chapter, does not substantially impair the use and enjoyment of surrounding properties, and does not substantially impair the character of the surrounding area and does not have any substantial adverse effect on surrounding properties. All conditional uses shall be subject to site plan review in accordance with Article IV of this chapter. Public notice of the application shall be filed in accordance with Where the regulations set forth a specific requirement or dimension for setbacks or other controls, the Planning Board may impose a higher or stricter control or limit if testimony before the Planning Board so warrants. Ordinance, A. The parties initially stipulated that the portions of A were inapplicable given the Appellate Division s holding in Lincoln Heights. In Lincoln Heights, the 21

22 township ordinance also required the planning board to apply the negative criteria when reviewing an application for a conditional use. Lincoln Heights, 314 N.J. Super. at 386. In addition to holding that this requirement for a conditional use lacked the specificity required, the Court also held that giving the planning board authority to deny a conditional use application based on its noncompliance with the negative criteria would usurp the authority vested on the board of adjustment under the MLUL. It would also contravene public policy and the concepts of equity under land use and zoning law because it would in essence make satisfaction of the negative criteria a condition precedent to the grant of a conditional use. Id. at 387. The Court further stated that Id. Municipal ordinances cannot serve to shift the balance of power established between [the zoning board of adjustment and the planning board] by the Legislature of this state and cannot, therefore, include negative criteria as a specific requirement which must be satisfied to establish a conditional use. Given this holding, which was as previously noted fully affirmed by the Appellate Division, the Board properly concluded that the negative criteria language of A was inapplicable and correctly disregarded the language when viewing GenPsych s application. Plaintiffs now assert that the Ordinance became void upon the Board s decision to sever the inapplicable negative criteria language because the Township s necessarily intended the language to apply when it enacted the Ordinance. The assertion does not square with the language of the Ordinance. Plaintiffs and the Board note that 1-17 of the Ordinance specifically states that Each section of this Ordinance is an independent section and the holding of any section or part thereof to be unconstitutional, void, or ineffective for any cause shall not be deemed to affect the validity or 22

23 constitutionality of any other sections or parts thereof. This language indicates that each section of the Ordinance is a separate and distinct from any other section. Plaintiffs contend this language only creates a presumption of severability and they have successfully rebutted this presumption, thus shifting the burden to the Township and Board to demonstrate that can survive as severed. The Court disagrees. The Township stated its intent that the Ordinance sections be viewed as severable upon examination by enacting 1-17 of the Ordinance. Plaintiffs speculate that the Township necessarily enacted the Ordinance under the belief that Board would be entrusted with the authority to apply the negative criteria and impose higher standards with examining a conditional use approval application. However, the Township was aware of the severability clause under 1-17 when it enacted Chapter 400. Thus, the Township was on notice that any invalid portion of the Ordinance was subject to severance, and the remaining portions would move forward provided there was no serious deviation from the legislative intent that made severance impossible. No such deviation is present in this circumstance. That the standard for this conditional use are liberal does not provide a justification for voiding the Ordinance s clearly expressed policy of severability. As in Lincoln Heights, supra, the Board justifiably severed the inapplicable negative criteria language and examined whether the Facility satisfied the legal requirements for a conditional use. The language of the Ordinance as it relates to GenPsych s application is not so interwoven that severability is impossible to accomplish without destroying the Township s legislative intent which was to permit such uses on the given terms. The Court further observes in this regard that Lincoln Heights has been the law 15 years and these years have included several mandatory master plan reexaminations pursuant to N.J.S.A. 40:55D-90. In all that time, Lebanon has not indicated any discomfort with its severability clause. Accordingly, the Court finds that the Board properly disregarded the negative criteria language when reviewing GenPsych s application and the Ordinance remains valid after the severance. 23