901 Ernston Rd., LLC v. Borough of Sayreville Zoning Bd. of Adjustment

901 ERNSTON ROAD, LLC, Plaintiff, v. BOROUGH OF SAYREVILLE ZONING BOARD OF ADJUSTMENT;and BOROUGH OF SAYREVILLE, Defendants.

Civ. No. 18-2442

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

May 11, 2018

NOT FOR PUBLICATION

OPINION

THOMPSON, U.S.D.J.

INTRODUCTION

This matter comes before the Court on the Motion for Preliminary Injunction and Application for Order to Show Cause by Plaintiff 901 Ernston Road, LLC ("Plaintiff"). (ECF No. 6.) Defendants Borough of Sayreville Zoning Board of Adjustment ("Defendant Board") and the Borough of Sayreville ("Defendant Borough") (collectively, "Defendants") oppose. (ECF Nos. 10, 12.) The Court has decided this Motion based on the written submissions and oral argument held on April 25, 2018. For the reasons stated herein, Plaintiff's Motion is granted.

BACKGROUND

Plaintiff is an affiliate of Recovery Centers of America, LLC ("RCA"),¹ which runs neighborhood-based recovery campuses for drug and alcohol addiction treatment and recovery. (Compl. ¶¶ 5, 14, ECF No. 1.) On January 18, 2018, Plaintiff entered into a long-term lease (15years with four, ten-year renewal options) on a 6.96 acre property at 901 Ernston Road, Sayreville, NJ ("the Property"), located within the Borough of Sayreville, in order to open an RCA facility. (Id. ¶¶ 6, 27.) The property is within a "PRIME zone"—"Public Recreational, Institutional Municipal and Educational . . . designated, inter alia, as conditionally approved for long-term healthcare and nursing." (Id. ¶ 6.) It was previously a nursing home, and a proposal was approved in 2014 for it to be reconstructed and opened as a facility called Sayreville Nursing. (Id. ¶¶ 8, 30.) Defendant Borough is a municipal entity located in Sayreville, NJ, and Defendant Board "is a quasi-judicial body created by the Borough of Sayreville and is vested with the authority under the MLUL [Municipal Land Use Law]" to grant variances and hear and decide zoning appeals. (Id. ¶¶ 15-16.)

On July 7, 2017, RCA filed an initial application with the Borough of Sayreville Zoning Officer to confirm that the property could be used for a treatment facility, as conditionally permitted in a PRIME zone. (Id. ¶ 35.) The application was denied without reason. (Id. ¶ 36; see Zoning Permit Application, Ex. B, ECF No. 10-2 ("Proposed use is not permitted in zone nor comports with planning board site prior approval.").) RCA appealed to Defendant Board on July 26, 2017 and filed a variance application on September 15, 2017 in an attempt to expedite the approval process. (Id. ¶¶ 37, 39.) On September 27, 2017 at an initial hearing, RCA presented testimony that this facility falls within the definition of a "long term care facility/nursing facility/nursing home" pursuant to the Sayreville Zoning Code, suitable for a PRIME zone. (Id. ¶¶ 11, 32, 40; Sayreville Zoning Code 26-6, Ex. A, ECF No. 1.) On or about October 12, 2017, Defendants sent notice to proximate landowners and published notice of RCA's application in the local newspaper. (Id. ¶ 42.)

Subsequently, Defendant Board held three public hearings on November 8, 2017, December 13, 2017, and January 24, 2018. (Id. ¶ 46.) At each, RCA presented witnesses to address the four criteria used to assess variances in New Jersey, in an effort to demonstrate the facility would be a beneficial use and its positive factors would outweigh any negative considerations.² (See id. ¶¶ 49-78.) All told, Plaintiff presented seven witnesses: Dr. Deni Carise, RCA clinical director (id. ¶ 53); James Higgins, licensed professional planner (id. ¶ 49); Christine Cofone, professional consultant on planning and zoning (id. ¶ 50); Scott Turner, civil and site engineering expert (id. ¶ 62); Karl Phenke, traffic and safety expert (id. ¶ 65); Michael Desrosiers, director of operations at an existing RCA facility (id. ¶ 82); and David Dorschu, the CEO of the Mays Landing RCA facility (id. ¶ 98).

Dr. Carise began her testimony with extensive detail as to the nature of the opioid crisis in America. (Nov. 8th Tr., Ex. B, 28:20-31:21, ECF No. 1.) She emphasized that the epidemic particularly plagues this area of the country: "New Jersey has the sixth highest rate in the nation of ER visits due to opioid problems. And Middlesex County is in the top five counties in the state for overdose deaths." (Id. 29:11-14.) Dr. Carise then provided an overview of RCA's mission and design, created to provide a new rehabilitative model to address this crisis. RCA is a "neighborhood model" that draws "most patients from a 50-mile radius around [the] site." (Id. 32:17-19.) The sites are designed to provide the opportunity for long-term relationships with therapists, family-based therapy, education sessions for families, and both in-patient and out-patient care. (Id. 32:20-34:4.) Dr. Carise also gave a snap-shot of the client/patient population:"18 and older," "predominately middle class," "82 percent fully employed," "90 percent commercially insured, and about 10 percent . . . self pay." (Id. 46:12-22.) None of these patients would be "somebody with a really significant acuity psychiatrically." (Id. 47:19-20.) The remainder of Plaintiff's witnesses presented testimony as to "five possibly negative considerations—aesthetics, noise, traffic, safety, and impact on zoning—that the Board might weigh against the public interest." (Compl. ¶ 60.) The witnesses also responded to particular concerns raised by Defendant Board, with extra attention given to safety. (See id. ¶¶ 79-90.) This testimony specified the number of surveillance cameras, security staff presence, facilities rounds that are conducted, use of RFID³ in patient bracelets, patient safety monitoring plans, comprehensive intake searches, and discharge procedures. (Nov. 8th Tr. 51:12-60:12.)

Public comments from Sayreville residents were heard at the end of the second and third hearings. (Id. ¶ 47.) Between the two hearings, sixty-five members of the community participated, all speaking out against the approval of the RCA facility. (Id. ¶¶ 102, 110.) The public comment period was monopolized by concerns about the facility's close proximity to the Eisenhower school and residential communities and suggestions that it could be built anywhere else in Sayreville where it "won't affect as many residents." (Dec. 13th Tr., Ex. C, 108:15-18, ECF No. 1; see also id. 102:18-24, 118:17-21.) It was clear that the residents felt this "just can't happen in our own back yards." (Id. 109:16-18; Jan. 24th Tr., Ex. D, 77:4-7, 104:15-16, 111:8-10, ECF No. 1.) A number of comments focused on the pre-approved use of this property as a nursing home and expressed personal preference and community need for a nursing home (see,e.g., Dec. 13th Tr. 98:1-5, 100:6-24, 106:21-24), although a nursing home application was not under consideration in lieu of RCA's application. Some residents brought their own, uncorroborated, facts regarding rehab facilities, crime rates, drug recidivism, and decreasing home values. (See e.g., id. 108:18-109:15, 111:2-7; Jan. 24th Tr. 25:10-12, 33:15-16.)

At the close of the January hearing, Defendant Board held a closed-door session to receive legal advice from Defendant Board's counsel, Karl Kemm. (Compl. ¶¶ 113-14.) After that session, Defendant Board announced its decision to deny the variance application, and each member provided a statement of reasons on the record. (Id. ¶¶ 115-25.) According to Plaintiff,

While some Board members mentioned safety and quality of life concerns, those sentiments were blatant pretext for other discriminatory purposes, and the Board's empty statements of concern for patients amounted to nothing more than a not-in-my-backyard ("NIMBY") defense premised on the perceived danger caused by those suffering from alcohol and drug dependency.

(Id. ¶ 116.) A number reflected that they would welcome the construction of an RCA facility in a different location in Sayreville, but according to Plaintiff, the suggestion "amounts to nothing more than platitudes." (Id. ¶ 120.) Plaintiff also alleges that there were some explanations advanced by Defendant Board that lack support in the evidentiary record. (Id. ¶¶ 124-26.)

Following the denial, on February 13, 2018, Plaintiff and the landlord amended the lease to include a clause for termination by Plaintiff within 10 days of March 31, 2018. (Id. ¶ 28.) On February 21, 2018, Plaintiff filed this lawsuit pleading violations of: (I) Title II of the Americans with Disabilities Act, (II) the Fair Housing Act of 1988, (III) the Rehabilitation Act of 1983, (IV) § 1983 through the denial of the variance application, (V) substantive due process under the Fifth and Fourteenth Amendments, (VI) N.J.S.A. 40:55-D-70(d), (VII) N.J.S.A. 26:2BB-1 and 30:6C-1; and (VIII) the NJ Law Against Discrimination. (See generally id.)

On March 6, 2018, Plaintiff filed its emergent Motion for Preliminary Injunction and Application for an Order to Show Cause. (ECF No. 6.) On March 9, 2018 the Court held astatus conference and established a scheduling order for the Motion. (ECF Nos. 7, 8.) Defendant Board opposed (ECF No. 10), and Defendant Board and Borough then opposed jointly (ECF No. 12). Plaintiff replied. (ECF No. 13.) The Court heard oral argument on the Motion on April 25, 2018. (ECF No. 20.) This Motion is presently before the Court.

LEGAL STANDARD

The grant or denial of a preliminary injunction is within the discretion of the Court. See Am. Express Travel Related Servs., Inc. v. Sidamon-Eristoff, 669 F.3d 359, 366 (3d Cir. 2012). The primary purpose of preliminary injunctive relief is "maintenance of the status quo until a decision on the merits of a case is rendered." Acierno v. New Castle Cty., 40 F.3d 645, 647 (3d Cir. 1994). Affirmative relief or mandatory relief that alters rather than maintains the status quo may also be granted, but "the burden on the moving party is particularly heavy." Am. Fin. Res., Inc. v. Nationstar Mortg., LLC, 2016 WL 8201959, at *2 (D.N.J. Apr. 29, 2016) (qu...