Planning Board Public Meeting Minutes 20140616

The following minutes are a summary of the Planning Board meeting of June 16, 2014. For more detailed information, interested parties may request an audio recording of the meeting from the Board Secretary for a fee.
Call to Order & Statement of Compliance with the Open Public Meetings Act: Chairman Nalbantian called the meeting to order at 7:38 p.m. The following members were present: Mayor Aronsohn, Chairman Nalbantian, Mr. Reilly, Ms. Dockray, and Ms. Peters. Also present were: Gail Price, Esq., Board Attorney; Christopher Rutishauser, Village Engineer, and Jane Wondergem, Board Secretary. Councilman Pucciarelli is recused from the hearing on the H – Hospital zone and was absent from the meeting. Ms. Bigos and Mr. Joel were absent.
Correspondence received by the Board – Ms. Wondergem said the Board received an email of apology from Marla Sherman on June 10, 2014.
Public Hearing on Amendment to the Land Use Plan Element of the Master Plan for the H-Hospital Zone, The Valley Hospital, 223 N. Van Dien Avenue, Block 3301, Lot 51 – Following is the transcript of this portion of the meeting, prepared by Laura A. Carucci, C.C.R., R.P.R.:
Before we begin let me just make a short announcement.  Tonight's special meeting was scheduled last week after we ran out of time following attorney rebuttal and closing remarks from Mr. Kates for Concerned Residents of Ridgewood and Mr. Drill for Valley Hospital. With the record closed, tonight the Board will hear from its own Counsel with instructions to the Board regards these hearings.  We will not take questions during this process.  But you're encouraged to hear both attorney instructions and any board questions.
Tomorrow evening you will hear the Board's deliberations and vote.  Tomorrow's meeting will be here at BF.  It will begin at 7:30 p.m. and the doors will open at 6:30 so people will have enough time to get in.
Please note that tomorrow the only means of ingress will be through the rear main entrance doors not through the front.  The rest facilities will also be accessible only from the back. 
So as a reminder for tonight it's important that we hear Ms. Price's words and ask questions if any, without interruption.  So please respect this. 
Thank you very much for coming this evening.
Gail? 
MS. PRICE:  Okay.  Can everyone hear me?  Everyone hear me up here?  Yes?  Okay.
So tonight what I would like to do is try to pull together the Board's last 25 meetings or so which we started last March, as a result of the proceedings that occurred before Judge Carver as a result of the litigation that had been instituted by the concerned citizens and the subsequent appearances by counsel on behalf of Valley Hospital and our office on behalf of the Board.  And the direction that we received from Judge Carver to return to the Board, hear an Amendment from Valley Hospital, receive input from C.R.R.  and other members of the public who had comments on the Amendment, and then for the Board to take action on that Amendment.
There has been certain miscommunications and reporting along the way that has not accurately depicted the situation that I'll address during the instructions.
But tonight is an attempt from me as Board Counsel to advise the Board on what your role is as Planning Board when reviewing an Amendment to the Master Plan both under governing law and under the Municipal Land Use Law, which you know is statutory provision that enables this Board to act with your authority. 
The law that's in effect right now with regard to the H Zone    and I shouldn't use the word law, but the operative Master Plan that's in effect right now for the H Zone is the 2010 Master Plan Amendment that this Board adopted. The Council declined to take action on that Master Plan Amendment in 2011, and that that was what then triggered the litigation that I just spoke of, and triggered the reason to return to these hearings.
But for purposes of your review, the policy statement and the section of the Master Plan that's in effect is that 2010 Master Plan Amendment.  There are a lot of questions that came up during the public portion of both questions and comments.  And, again, at the last meeting, as to whether this Board should basically    and these are my words, "put blinders on" to not looking at the property. 
And I'm going to say to you that that is of course ludicrous.  You have to look at the property as you do with every application, and as you do with every Master Plan Amendment or Master Plan Re Examination that this Board entertains.  But there's a difference in looking at the property and looking at the property with regard to what underlying public policy document is in effect. 
And before I start with the specific instructions, I just want to give you an example on that.  If someone came to the Board and said we'd like you to consider looking at an Amendment for a section of the Village, let's say the Franklin Avenue corridor.  The Board would need to look at the Master Plan and see, well, what does the Master Plan say with regard to the Franklin Avenue corridor?  That's where the Board would start. And then you would look at the new proposed language that was before you seeking the modifications for the Master Plan with regard to the Franklin Avenue corridor. At the same time naturally you would look at the properties along the Franklin Avenue corridor.  You would look at existing conditions.  You would look at the streetscape.  You would look at the traffic conditions.  You would look at the buildings.  You would look at everything that was happening on that corridor. 
So you would not close your eyes and say, I can't look at what's out there, I can only look at the Master Plan.  And that's not what this Board does, you know you look at the controlling law.  And then you look at facts, as those facts are presented by actual development on properties. 
So I just want to caution you not to mix those items up, but I want to be very clear that you absolutely are allowed to look at what's out there on the hospital property because the hospital property is the H Zone.  So you need to be aware of what's out there when acting on this proposed Amendment.  At the same time you need to be very much aware of the presence and the legality of the 2010 Amendment when you make your decision and your deliberation.
With that let me just start with a little bit of background and the Board knows a lot of this, but I just want to repeat it for purposes of the record and then for your use in going forward with your deliberations tomorrow night. We've talked a lot about the importance of the Master Plan as being basically the cornerstone of everything that happens in the municipality.  From the Master Plan you get your Zoning Ordinances.  And from your Zoning Ordinances you get development.  So the creation of the Master Plan is the fundamental determination and public policy document.  However it's important to remember and the Court was very clear in the Manalapan Realty case, which was a Supreme Court case, that the Master Plan does not have the operative effect of a Zoning Ordinance.  So when Board acts on a Master Plan or a Master Plan Amendment that does not give rights of development to a property owner.  It only speaks of what this Board finds as appropriate development for the municipality, for the Village, and it is to be used as guidance then for the governing body to adopt Zoning Ordinance regulations to guide that development or if a Zoning Ordinance is not adopted it may be used by a property owner to go to the Zoning Board in a given municipality and make an application and say, my use is consistent with the Master Plan so I'm entitled to a use variance and whatever bulk variances relief that he or she may be seeking. 
So by statute this Board is the only board that is entitled by authority to act on the Master Plan.  And the governing body is the only body that can act on the Zoning Ordinance.  So there's been some confusion along the way that those two kind of mixed or that this Board can do both.  The Board can only do the Master Plan and the governing body can do the Zoning Ordinance. 
The framework for Master Plan creation and adoption is found in Section 28 of the Municipal Land Use Law and I think I quoted at the last meeting that that statutory section says that the Board is to adopt a Master Plan to guide the use of lands within the municipality in a manner which promotes public health and safety and promotes the general welfare.  So those are some important buzzwords:  Public health and safety, and promotion of the general welfare.  And I'll come back to those along the way as I am going through the instructions. 
The MLUL talks about the purposes of zoning in Subsection 2.  And in that subsection it makes reference both directly and indirectly to certain purposes of zoning and the general welfare. Case law has identified "general welfare" as being promoted in instances of creation of affordable housing, instances when you create certain regulations where you're promoting ecologically sensitive properties, where you might be preserving agricultural properties or open spaces.  If you're promoting certain aesthetic considerations, that another example of promotion of the general welfare. 
And then we have the subsection that talks about inherently beneficial uses, which I identified a couple of meetings ago because we heard a lot of testimony about inherently beneficial uses being both the Hospital and Benjamin Franklin School where we are tonight, and what exactly does inherently beneficial mean, and what does it mean for this Board that the Hospital is an inherently beneficial use. 
First off, let me just tell you that the definition of an inherently beneficial use is contained in the Municipal Land Use Law as Subsection 4 and I'm going to read this exactly to you: "It's a use which is universally considered of value to the community because it serves the public good and promotes the general welfare". 
So examples of inherently beneficial uses have been specifically identified to include hospitals, schools, child care centers and group homes.  And they've be pointed out as serving not only local needs but regional needs.  So the issue that we have spent a lot of time on is where does local come into play with regional?  And where does that weigh with the Board's determination as to the present Amendment?  And I'll get back to that. 
On a procedural basis, from the outset the Board has had to do a lot of things to get us to this point and Judge Carver, I think, certainly thought we would be to this point a lot sooner since he anticipated we were going to be done in three months.  So here we sit, I guess, 15, 16 months later.  But I think that the Board has heard from a lot of different experts both pro and con and certainly on behalf of the Board itself, because the Board has retained its own experts.  And those experts on behalf of the Board are, just like in any other case where the Board hires experts, hired on behalf of the community, because those experts are hired for to speak for and on behalf of the community and to ensure that there is a full and unbiased review. 
So the Board has taking a very variant course of action and that has been that there's been a preparation of the proposed Amendment.  That Amendment was first done by the Valley Hospital pursuant to Judge Carver's direction.  And then it was subsequently modified by Blais, the Village Planner. 
The Board scheduled a variety of hearings, all pursuant to the Municipal Land Use Law.  There was the provision of required statutory notice.  And I can confirm for the record that notice is accurate and complete.  Jane has supplied the necessary notice to both the Bergen County Planning Board and as required to others pursuant to the Act.  The documents have been made available for public inspection as required by the statute.  The hearings have been held in a procedurally accurate manner.  There was reference to one meeting that may have been cut short in an abrupt manner.  And I just want to state for the record that the Board did not cut any meeting short.  And, in fact, that meeting, it was an August meeting because I was on vacation.  That meeting was cut short because it was at the Village Hall and the attendance that evening far exceeded capacity at the Village Hall.  And that meeting needed to be canceled with the consent of all Counsel by the way, because of public safety and required Fire Code rules. 
And then the next thing would be proper voting.  I confirmed with Jane that all the requisite certifications are in to date.  And then once the Board takes any action in the next step would be that that action would be noticed and then there would be publication. 
So we've talked about the process in terms of what got us here.  The basic points of that Court Order, as I stated, included that Valley would submit the new Amendment, the Board would review it.  And C.R.R. agreed that it would dismiss their lawsuit without prejudice. At the conclusion of this proceeding the parties, all parties would be put back to where they were originally, retaining the right to reinstitute litigation and, of course, take any actions relative to new litigation. 
That Order, as I reviewed with the Board in March of 2013 specifically found that there was no finding that any party involved in the 2010 Amendment had in any way acted improperly or wrongfully and left the 2010 Amendment in place.  All the zoning relative to the 2010 Amendment was held in abeyance.  And what I mean by that is it was specifically agreed that no party would go to the Zoning Board seeking approval under the Municipal Land Use Law for a site plan and use variance while the matter was pending here.  And it further provided that the Board would review the new Amendment pursuant to proper notice, which certainly occurred; that the public would be provided an opportunity to comment which has also occurred; and that C.R.R. would proceed in a manner that would not delay the proceeding which has also occurred.  And the last provision of the Order was that all parties would move forward to cooperate.
So over the course of the last 25 meetings, the foregoing has hopefully, you know, gotten us to where the Board would be able to make a decision on whether it finds that the 2013 proposed Amendment is something that it finds to be of greater benefit than the 2010 existing Amendment. 
And let me just say also, to negate any comments on this as well, you know, even though I've lived in town since '83 as Board Counsel my comments are only legal in nature.  I have no note.  I have no sway.  If I had the sway power that people have said I have, I could be having a lot bigger job than I have.  I'm here to guide you with your legal role and the governing law and nothing more.  My opinion about matters, whether it's this matter or any other matter that the Board has handled for the last 15 years while I have been Counsel is irrelevant.  And I can't think of a single instance where my opinion has infiltrated any matter. 
So the    and it's ultimately your determination to review the pending Amendment.  That Amendment has been revised as you know by Blais and he made those revisions on notice after he issued his report, which I believe was a February report or March    February or March report.  And he made the modifications to the Master Plan that he then presented. 
So the Board's vote is the only necessary vote that's required at this point in time on the Master Plan.  And there's a couple of ways that this can happen. 
The Board can choose to approve the 2013 Amendment or the Board can reject it.  Voting to approve the Amendment would mean that the pending Amendment would go into effect replacing the existing 2010 Amendment.  So if the Board adopts the new Amendment it moots out the old 2010 Amendment. 
The Board could also vote to make minor non substantive changes to the pending Amendment.  So if the Board were to still have certain issues that    further than what Blais has already done, that were non substantive in nature and I'm going to highlight non substantive because of the legal issue, you could ask to have    on any kind of a motion you could have the motion be contingent upon the addition of those non substantive changes. 
A vote to reject or deny the pending Amendment would leave the existing 2010 Amendment in place and operative.  If the existing 2010 Amendment stands, the litigation on that matter can be reinstated by any party either the Valley Hospital or C.R.R. and in addition the Valley Hospital could pursue an application before the Zoning Board under the terms of the existing 2010 Amendment.  The Board cannot move to adopt a version of the pending Master Plan Amendment that has substantive changes.  The reason that it can't do that tomorrow is that it would    two reasons, A, it would be outside of the very specific scope of the Court Order from Judge Carver.  Judge Carver's Order was to come back on to have Valley Hospital present to the Board a proposed Amendment and have all parties work towards that to see if that was a compromise that would be acceptable.  It doesn't mean that it has to be acceptable, but that was the provision from the Court. Moreover and move important from a legal standpoint, the Board can't change the Amendment tomorrow night with a substantive change because you have to do that with notice.  And that's very clear under the Municipal Land Use Act.  It would have to be noticed and you would need new hearings.  So minor changes, minor additions, minor revisions would be fine.  But in order the do a substantive change you would need to have new notice and new hearings in order to accomplish that.  So statutory notice and a new set of hearings together with the other filing requirements that Jane has done on the past 25 hearings, for instance, with the County Planning Board would have to be accomplished.  And if we ignore those, for would clearly be reversible error by anyone who would challenge that.  And that's a very easy, a very easy thing to tell the Board.  It may not be a popular thing for people to hear, but it's an easy, clear-cut rule of the statute.
I just want to take a minute to touch on Ordinance 190 143 because that's been discussed in connection with these hearings.  And, most recently, it was referred to in the summation on June 19th.  Regardless of the presence of the Ordinance, anyone at any point in time can ask for a Master Plan Amendment.  My husband could ask for a Master Plan Amendment.  My daughter could ask for a Master Plan Amendment.  My neighbor could ask for a Master Plan Amendment.  They don't need that Ordinance to be able to ask for a Master Plan Amendment under the Municipal Land Use Law.  The statute allows anyone to ask for an Amendment at any point in time. What Ordinance 190 143 does for the Village is that it provides a mechanism that requires the party asking for that Amendment to pay the freight.  Basically to cover the escrow costs for all the expenses.  So the Board applicant in this case has retained traffic engineer, environmental engineer, planner, you know we've had five or so experts.  All of those experts' billings without that Ordinance would be at the taxpayers' expense because it wouldn't be an escrow account that would be started by the Applicant. And I asked Jane to compile that number, and it's my understanding that that number exceeds a quarter of a million dollars at this point this time.  So without that Ordinance on the books that would have been a taxpayer expense in connection with this project. 
So I think it’s just important to highlight that for this matter and maybe for other matters, that the purpose of that order is to protect the financial interests of the citizens because at any point in time anybody could ask for a Master Plan Amendment.  It's not    if the ordinance is voided it's not going to prohibit people from asking for the Amendment.  And it's not going to restrict it to just the Planning Board or the Village. 
If, in fact, this matter goes back to Court then of course the Village would be responsible for bearing all the costs of litigation, that's not a relevant issue for you determining which way to act on the Amendment.  But it's just something to note in terms of the financial aspect.  And other courts have found ordinances similar to Ridgewood's Ordinance to be valid. 
So with regard to the record that's been created in this case and what the appropriate standard of review is, let's talk about that for a minute.  So we've had, you know, 25 or so hearings.  And I noted at the last board meeting that I provided a summary to the Board of those meetings.  They started on March 11, 2013; the last meeting was June 9th.  And we had exhibits A 1 through A 38, and B 1 through B 21, and O 1 through O 11.  And then there are a series of "P" exhibits as well. 
The first thing that generally goes into making a record, as the Board knows is the application that's filed by the party seeking approval.  And in this case there's no application because it's a Master Plan Amendment.  So what we have instead is the request which was in the form of a proposed Amendment.  We now have the verbatim testimony from the witnesses.  We have the reports.  We have the written materials that were received into the record by C.R.R. we have the reports by the Board's witnesses, Dr. Kabir, Gordon Meth, Jamie May, Blais and Chris.  We have the comments of the members the public.  And we have certain sworn statements of the members the public. 
I said last week, and I want to reiterate again the legal summations that were made by both Counsels are not evidential in this matter.  They're not evidential in any matter in land use.  And they should not be relied upon by you in connection with your deliberations.  They're simply the respective attorney's own story that they want to tell at the end of the proceedings. 
So you have copies of all those materials.  You have copies of the transcripts.  And you've made yourself familiar with the contents of all of those.  The importance of your decision is that it must be based upon evidence that is solely in the record. And at certain times during the proceeding Katie and I didn't make a lot of friends when we said you can't go outside the record.  You can't rely upon newspapers articles.  You can't rely upon the Internet.  You can't cite the things that are hearsay.  But that's what you need to do.  You need to rely upon things that have been testified to, that are clear-cut, and that have legal foundations that are authenticated.  And while this is not a court of law, this is clearly not a court of law, it is quasi-judicial in nature.  And there are certain rules that need to be adhered to.  And some can be lightened and expanded, and I think that the Board has done that with frequency when the need has arisen during the proceeding. But if materials or information exist that are not in the record you cannot consider those materials when reviewing them in connection with this matter. 
It’s up to you to decide what's true and relevant in terms of the facts.  And you have the choice of accepting testimony from witnesses.  You can say, I didn't believe a word that that person said, or I found that person's testimony much less creditable than that person's testimony.  It’s up to you to determine who you find credible and who you don't. You have accepted a variety of witnesses as experts in connection with this matter.  Those witnesses were accepted into very specific fields of expertise and designated in those fields.  So when you're relying upon your findings in connection with those particular witnesses, I would caution you not to go outside the scope of the fields of expertise.  So if that expert was qualified in A, B and C don't expand A, B and C and say, well, you know, I think that that person really either said stuff, you know, about F, G and H or should have said stuff about F, G and H.  Just keep it in their respective field of qualification and areas that they actually testified in. 
And remember that experts are given a little bit of leeway under New Jersey Rule of Evidence 703 which provides that an expert can rely upon and base opinion upon facts or data that may not be admissible in evidence under strict circumstances, if those were the type of facts or circumstances typically replied upon by other experts in his or her field.  But I just want to reiterate that it’s critical that you're not bound to accept the testimony of any particular or all of the witnesses.  And you need to focus in on the issue of net opinion which we spent at least two meetings on.  And you need to make a decision on the exclusion of any testimony that you might find is not supported by adequate testimony. 
Katie and I both went through, including a legal memo, in terms of what the standards are for net opinion.  But if there was no substantiation of the conclusions by a witness, and there was only general statements without explaining standards or particular experience that served the basis of his or her opinion, you need to pause and say, "was that a net opinion", because the Supreme Court and the Appellate Division has, of late, been all over this issue in terms of throwing matters out based upon net opinion.  The Saddle River case, another case was Araia (phonetic) versus Starling, Board of Education Clifton.  They're all recent cases that have reiterated the Court's stress point on boards such as this board needing to make sure that the testimony you’re basing your decisions on is, in fact, testimony that's substituted by solid fact.
Let's see, the Courts also held that a Board's decision can be set aside as being arbitrary, capricious and unreasonable, those are also buzzwords that this Board is very familiar with, in the absence of persuasive evidence in the record. 
So if there is a hole in the record that you can't find any testimony on, that you think is critical, then you should not speculate.  You shouldn't say "what ifs".  You should make a finding that something significant is missing and conclude that way.  But you need to make that based upon the actual testimony that has, you know, been set forth.
It’s also important to consider that while the testimony of the members of the public certainly, as I stated a number of times, is extremely relevant and represents the opinion of the neighborhood and the surrounding properties, this is not, as all other matters before the Board, is not a matter of head counting.  So if we had 200 people who are against this, and 50 for it, it's not relevant.  And vice versa.  The Courts have been all over this issue too.  And have thrown matters out where boards have made determinations based upon head counting.  So there's a lot of stuff in this record that the Board can rely upon without making any statements upon the number of people that they    you know the number of people who were at the meetings or anything like that because the number of Objectors present or the number of proponents present have been held by the courts not to be relevant.  What's relevant is what this Board finds based upon the statutory parameters and the records, whether this Board finds it to be adequate for a public policy document. 
So the standards, I want to talk about that for a second because Blais talked about the Sica matter at one of our meetings, I don't know if that was two or three maybe four meetings ago, and he was reviewing the Sica case and the variance criteria under the Sica case as a guideline only, not as controlling.  You know that this is not a Zoning Board matter.  It's not a matter where the Board is weighing the positive criteria versus the negative criteria.  And Blais set forward the use of the Sica case and the inherently beneficial use language as an example for the Board to look at, in terms of how you could go through this record in connection with the drafting and adoption of the Master Plan Amendment. However it’s important that you not get caught up and weighed down in the specific positive and negative criteria of the variance section of the statute because that's not what's controlling.  What's controlling is Section 28 of the Municipal Land Use Law. So it's not Section 70 which is the variance section, which talks about positive and negative, it's Section 28.  So the only reference language in Section 28 is to guide the use of lands in a manner which protects public health and safety and promotes the general welfare. So Blais, when he referred to general welfare and Sica case, that's where I'm coming back full circle.  The use of inherently beneficial use was because the statute defines hospitals as an inherently beneficial use. 
So his use of that was more in terms of a reference and a comparison with the general welfare, I think, than anything else.  And I think it was also utilized in connection with the regional versus local need question that arose, and whether the Board is limited to look at only local issues or whether the Board should be looking at regional issues as well.  And certainly by the definition of inherently beneficial use, itself, and how the statute does defines the hospital use, not this hospital use, but a hospital use.  I'm not opining on Valley Hospital.  I am referencing statutory and case law decisions on hospitals.  It specifically talks about regional benefits as well as local. 
And the Meridian case was which was Meridian versus Point Pleasant, I think, yes, Appellate Division, that was an instance where there was a claim, okay, just look at the local, just look at local, don't look at regional.  And the Board in that case had attempted to balance out and they wanted to link the nursing home aspect of the development to elimination of the acute care facilities from the hospital.  So the board basically said, okay, well, we'll allow you to have your new section if you eliminate your old section.  And the Court said "no go".  And they talked about the regional needs versus the local and that an inherently beneficial use of the hospital serves the regional. 
So that's a consideration and that's where I think Blais was going with that entire conversation that he had.  And in the Howell case, Howell versus Brick, that issue was also discussed.  And the quote from the Court was because zoning powers are derived from the state's general authority, a zoning decision must consider the welfare of all the State's inhabitants, not just the interests of the inhabitants in a particular locality.  And bringing it down to a fact issue, the Board needs to think about it in a very general sense, would the Board, when we get applications for a restaurant or an office building or, you know, some kind of a commercial use, would that Board make inquiry of those users, if the Board was considering a use or a Master Plan Amendment from one of those users, would you make inquiry of their customer base or their business plan or the percentage of people coming from out of town?  You have to think about it the same as you would do on any other matter that this Board looks at because you can't distinguish one type of application from another. 
Even though this is a huge application or matter and even though it takes 15 acres, and even though it's gone on for    I don't know it's gone on for a lot of years, but I'm talking about just going from 2006 forward, you need to be consistent with how you look at this compared to the other applications and other requests that you look at. 
So there are a lot of things you can look at to determine whether you want to adopt this or not, but just don't stray outside of the parameters of what you would do for the other types of businesses and commercial establishments that you look at for other properties and other uses in the Village because doing so would certainly be outside of the proper parameter.  So the review of the Board's determination, if the Board makes a decision tomorrow night, the question will then be has the Board acted in an arbitrary, capricious and unreasonable manner and has it abused its discretion in either adopting or rejecting the pending Amendment.  And then the matter is free to go by way of a prerogative writ lawsuit back to Hackensack. 
The Board is vested with a certain amount of discretionary authority which will not be overturned by the Court unless there's significant proof that the Board was arbitrary and capricious.  And the judicial review is intended, clearly, to be a determination of the validity of this Board's action, not    and the Court's not going to substitute its judgement, his or her judgement, as to whether this was a proper decision of the Board. 
So there's some other quick matters that I just want to touch on, and we did this along the way, letters, articles, petitions, outside the record unless they were specifically marked.  Okay?  So none of those are to be considered.  And the basis for that, as you know, is that unless the parties were here to be cross examined by all interested parties, it’s not fair and equitable to receive those things into the record.  And it’s an irreversible error. Anything on the Internet or outside the record, as I said, is not to be considered. 
Issue of preemption, as the Board knows when we review certain applications we are preempted by higher authority.  So sometimes we're preempted by the NJ DOT for matters on Route 17.  We might be preempted by the NJ DEP for matters involving wetlands or stormwater management if Chris hasn't covered everything and dotted all the "i"s and crossed all the "t"s and if it's a state regulated permit there are    there are a host of instances when we are preempted by higher authorities. Another example of that is preemption by the State Department of Health.  And in this case I've given the Board both the Overlook Terrace Management Case as well as the statutory citations for the Healthcare Facilities Planning Act.  That Act takes you through the provision that the State Department of Health is the entity that has the central responsibility for the development and administration of the state's policy with respect to health planning, hospital and related healthcare services and healthcare facility costs containment programs.  The rules apply to the initiation, construction and expansion of all healthcare facilities in the State of New Jersey. 
So those rules are found at N.J.S.A. 26:2H 1 et seq and also at N.J.A.C. 8:33 1 1.1B.  And the quote is significant that provides recognizing the significant changes in the economics of the healthcare system since the inception of the Certificate of Need program, decisions as to most healthcare services, acquisition of medical technology and expansion of facilities can best be made by the healthcare provider.  Moreover, this rule provides that the appropriate role of the state with respect to services no longer subject to the Certificate of Need is that of licensure facilities and services to ensure the quality of care. 
And our Supreme Court has held that the declarations of legislature policy in this particular Act, which is the Healthcare Facilities Planning Act, include jurisdiction over Certificate of Need and licensing functions by the Department of Health.  And the relevance here is, is that that jurisdiction includes the number of beds that a facility may or must provide.  So the relevance of that in this Master Plan Amendment is that with preemption being a judicially created principal that says a municipality cannot act contrary to the State where there's a higher authority in charge of issues that are before them, the issue of bed count is clearly an issue that is regulated by the Department of Health. So the relevance is that what we heard, the Board's heard a lot about the transition to single bed rooms and the count of beds, this Certificate of Need covers the bed count.  This Board can't get involved, in our opinion, in determining whether that Certificate of Need is valid, appropriate, should be modified, any of those items because we're not a party to the state.  We weren't there when the Certificate of Need was issued.  The Planning Board has no role under the Act itself, under the Health Care Facilities Planning Act.  And the State Department of Health has made a determination that Valley Hospital is entitled to X number of beds. 
So that said the Board needs to determine, okay, on the Master Plan, how does the Master Plan then take shape?  And what impact does that have on the number of beds, because if you make a determination that you're going to reduce the number of beds, A, I think that we have a problem on preemption, but, B, if you reduce the number of beds and are mindful of preemption, you need to find the beds someplace else on the site.  And the reason why I'm saying that is because it's a ripple effect.  We've heard a lot of testimony during the hearings about height and setbacks and buffers and parking and underground facilities.  So if the beds come off a particular section    and the Board might determine that.  The Board might say, look, you know, we want to move the beds some place.  Just be mindful that you need to then say, all right, well, we're preempted by the State Department of Health on the number.  So where is the number going to go?  So does that mean that the setbacks get decreased?  Does that mean that there's underground construction?  Does that mean that there's less parking?  You know they're all questions that need to be answered.
So you can't, in our opinion, ignore the preemption issue by the Department of Health because once that Certificate of Need is issued that issue of bed count number is not before us and would never be before us anyway.  We don't regulate the number of beds in a Zoning Ordinance to begin with.  That's something that's covered by the State Department of Health.  But that's not to say that you can't look at the other issues to find whether the overall Amendment is appropriate.
And just going back to the Meridian case, again, that's exactly what happened in that case, not with bed count but that was where the Board had said, okay, two floors proposed for the nursing home could be taken off and not used and, you know, take the floors off and then you can have your new use.  And the Appellate Division said, no, no, no, you can't get involved with basically framing the inside operations of the hospital because that's what the Department of Health is for.  That's the business plan for the Department of Health. So I cited that case for you and gave you some examples of case law on that point.  And just to bear in mind when you're looking at that particular issue. 
Property values, this issue has come up a couple of times.  Economic hardship is not a proper consideration on anybody's side.  First of all this is not a situation where eminent domain has been asserted.  There's no claim or proof in the record with any expert testimony or any hard facts that the Board could make a judgment pro or con on economic benefits, property value wise.  There's just a lack of testimony on that.  It wasn't something that was introduced. 
And, quite frankly, on a Master Plan Amendment I'm not sure it would have been appropriate anyway, but it didn't exist.  So there's nothing in the record to look at that. 
The request for the environmental impact study and the construction protections, we've been over this several times.  This is only the first step in this process.  For the Board to get bogged down    and I'm using bogged as a very general statement, I'm not saying it's not appropriate to look at all of those issues because it is appropriate to look at all of those issues, it's just a question of timing.  When do you look at all those issues?  This is just a policy statement.  The moment that you would start looking at all of those issues would be if this Amendment were to be approved and if there were to be an Ordinance that would be drafted, those concerns would be adequately and appropriately contained in an Ordinance.  That's the first place they should be.  And when that Ordinance then lays the ground work for a site plan application, this board would be guided by those standards and requirements that would be very clear.  And if they were missing, it would be grounds for a denial    grounds for an incomplete determination, but grounds that the Board would be clearly within its authority to act negatively upon it. 
From there the hearings are shaped on site plan to require the full blown testimony which a lot of people wanted at this stage, but it's not the right time for that, but would be the right time at site plan to require the environmental impact statement, to require the testimony on trucking, to require the testimony on air quality monitoring, to require all of that and to determine what steps were necessary in a construction document in a developer's agreement and what 24/7 steps would be necessary to protect public health, safety and general welfare.  The same buzzwords that come back again in full circle, where you start with the public policy document, you end up with a developer's agreement because you're protecting the very same thing that you started off with.  It's just different ways to get there and different issues, how you identify it.
But all of those things that you've heard, the stormwater management plan, the sanitary sewer design, the topographic information, the dewatering plan, all of those items would be issues that would be reviewed at length during site plan.
So it would be very appropriate that if this Board wanted to approve the current pending Master Plan Amendment, in recognition of any matters that the Board found to be of compelling weight, such as those to be contained in a Zoning Ordinance, it would be very appropriate for the Board Members to elicit those items when deliberating and making your findings. 
So if you were acting in an affirmative manner on this Amendment, it would be appropriate to say, you know, I think that an Ordinance would be remiss if it didn't contain X, Y and Z and that it must address issues of the following.  Certainly those kinds of comments are highly appropriate for the Board.  It's not appropriate if the Board votes it down because then it doesn't go to that next step.  But I just wanted to address that because we spent a lot of time on environmental impact and construction related issues.  It's not customary to hear the amount of testimony that we've already heard on those issue right now because typically you hear the testimony that we've heard later on.  So we've already spent a lot of time hearing things that we wouldn't normally get to until later on. 
But that's also raised a lot of key issues, so it's never inappropriate for the Board to hear matters that are of important public concern.
Limitations on intensity of use.  This was raised relating to the Hospital services and the operations that were going to be proposed to occur on site and off site and how the Board could address that.  There are certain issues that have been already built into the pending amendment, Blais' modification for instance, has a limitation on the number of on site parking spaces.  And he's also added that the intensity of the use should not increase, but the Board could provide in the resolution certain conditions requiring that expressed limitations on high intensity uses be imposed at the time of any Ordinance adoption.  Similar to what I just said about the construction related issue and the environmental issues, you could also make a finding that it was critical if any ordinances were adopted that they contain language ensuring that intensity of use was properly regulated going forward to address the issues that were raised relative to how does one protect, okay, today    today the intensity is going to be X, what happens to tomorrow?  So that's language that can be contained in your deliberations.
As I said before, the notice has been complete.  Board Member attendance and certifications are complete.  The Board was vetted at the beginning of the matter and there's been a full and fair opportunity for participation. 
After any action is taken, we would then provide for notice and publication of that action and the appeal right would run from that publication so there would be a 45 day appeal right from whatever that publication occurs. 
And I think    let me just check my notes, I think that is everything that I had covered, but I am sure somebody will have questions.
CHAIRMAN NALBANTIAN:  Kevin?
MS. PRICE:  And I'll have some of my coffee.
MR. REILLY:  I have a couple. 
Thank you.  I went through this in some detail a couple of times, very helpful.
But I do have a couple of questions.  You refer several times to health, safety and general welfare, the standard criteria to go back to the Village, you quoted 1926.  I mean they're bedrock considerations. 
But we heard a lot of evidence that takes into account additional considerations, traffic, noise, things of that nature, which the traffic of course is health and safety, but it's also a quality of life issue.  Noise is intrusive.  It's not health and safety.  It's quality of life.  Density, bulk, height, these too, visual impact, these are factors that    I assume, we can consider these factors in how we go through the evidence and we can weigh these factor in addition to strictly health, safety and general welfare.  We did take evidence on this.
MS. PRICE:  I think, Kevin, that's all part of your review of general welfare under   
MR. REILLY:  It fits within that rubric.
MS. PRICE:  Yes, in the rubric of the Section 28.  I think you can also go to the purposes of zoning in the act because   
MR. REILLY:  Right.  I am trying to differentiate between the zoning and the Master Plan, but, yes.
MS. PRICE:  But in the purposes of zoning, one of then is to provide adequate light, air and open space to secure safety from fire, floods, panic and other nature and manmade disasters.  So it goes to your issues that you just referenced. 
The one thing I would just tell you is that unlike some other matters we have pending before the Board right now that involve a use request, a new use   
MR. REILLY:  Well, this is an existing use.
MS. PRICE:  This is an existing use.
MR. REILLY:  Yes.
MS. PRICE:  So compatibility is not an issue, I think, that's properly on face before the Board because it's not a request to add a new use.  We have the H Zone.
MR. REILLY:  Right.
MS. PRICE:  We have the residential zones.  We have the hospital.  The hospital is here.  We don't have    right now the Board has before it other requests to add new uses in other parts of the town, so you need to look at that existing use relative to those items that you referenced.  And then also relative to the 2010 Master Plan.
MR. REILLY:  Right.  I don't think there's any dispute as to use.
MS. PRICE:  Okay.
MR. REILLY:  I think everybody, most people are happy with The Valley being there. 
The second question I have, you pointed out that we don't take into consideration the economic factors pertaining to individuals, neighbors, and the neighborhood.  And I think you pointed out probably correctey it's kind of speculative anyway.  We don't know what the property values are.  But do we apply the same principal to the Applicant in terms of, I mean it's kind of clear that Valley's competitive decision position is at least a factor here in their motivation.  So as I read your instructions, our focus is on the benefit or the detriment to the community, not strictly speaking the economic benefit or detriment to the Applicant, depending on which way the vote goes.
MS. PRICE:  Yes, I don't think you should be considering the economic benefit or detriment to any party, pro or con.
MR. REILLY:  Right.  It would just eliminate that.
MS. PRICE:  Correct. 
MR. REILLY:  And you pointed out too that there are some institutions that are presumptively beneficial to a community.  This happens to be a hospital; it could be a school, a library.  There are other institutions and yet there's got to be a narrow boundary to how much deference we're going to give to those institutions.  That's within our discretion, I would think, as we decide where we're going to draw the line.
MS. PRICE:  It’s within your discretion as long as you don't ignore the case law on the fact that these certain institutions are already declared to be like a    you know, depending on the type of school and hospital and, you know, those    the ones that have been identified as inherently beneficial in Subsection 4, that they are said to possess regional as well as local benefits. 
So I think it would be error to say it's local only and ignore the regional.  But you can certainly make a consideration and say    I think you have to look at what's in the record   
MR. REILLY:  Right.
MS. PRICE:     to do that. 
MR. REILLY:  But we're not restricting    it's not because we're restricting use.  So we're not restricting hospital use.  In fact that's the benefit, we're happy with that benefit.  And I hear what you're saying about Valley is a regional hospital.
But by the same token we're entitled to also    I mean that would be a broad lens, we're also entitled to at the same time use a narrow lens too   
MS. PRICE:  Yes.
MR. REILLY:     to look at the benefit on the community or a part of the community.
MS. PRICE:  Yes, absolutely.
MR. REILLY:  Thank you.
CHAIRMAN NALBANTIAN:  Anyone else have questions? 
MR. REILLY:  The final question, when we started this process    how many years ago was it now?  When we started this process I understood that we could take a fresh look at this application, we're not bound by the    except that 2010 Amendment exists, but we're not bound by the discussions.  We're not bound by whatever happened during that proceeding.  That we're taking a fresh look on the basis of this evidence    
MS. PRICE:  Correct.
MR. REILLY:  Am I correct on that? 
MS. PRICE:  You're correct.
MR. REILLY:  Okay.  And I think that answers my question.  Thank you.
CHAIRMAN NALBANTIAN:  Thank you. 
Anyone else? 
(NO RESPONSE.)
CHAIRMAN NALBANTIAN:  Things are clear.  Okay. 
MS. DOCKRAY:  You can't say that, Charles.  
MR. REILLY:  You have no questions? 
CHAIRMAN NALBANTIAN:  Okay.
MS. PRICE:  Good.
CHAIRMAN NALBANTIAN:  Okay.  Great.
Gail, thank you very much.  So that concludes this portion of this agenda of instructions.
Next item we have is executive session.  There is an executive session this evening. 
(Whereupon, Chairman recites Executive Session Statement.) 
CHAIRMAN NALBANTIAN:  Roll call, Jane?
MS. WONDERGEM:  Mayor Aronsohn?
MAYOR ARONSOHN:  Here.
CHAIRMAN NALBANTIAN:  No, yes? 
MAYOR ARONSOHN:  Yes.
MS. WONDERGEM:  Mr. Nalbantian?
CHAIRMAN NALBANTIAN:  Yes.
MS. WONDERGEM:  Mr. Reilly?
MR. REILLY:  Yes.
MS. WONDERGEM:  Ms. Dockray?
MS. DOCKRAY:  Yes.
MS. WONDERGEM:  Ms. Peters?
MS. PETERS:  Yes.
CHAIRMAN NALBANTIAN:  Okay.  Thank you.  We're going to close and go into executive session.  I believe we're going in another room.
And we'll return and adjourn.
So ladies and gentlemen, this is a reminder, we're going to come back and just adjourn the meeting.  So tomorrow deliberation will occur.  We will begin here at 7:30 p.m. you're welcome to arrive early, we'll have the doors opened and 6:30.  And, again, ingress will be occurring from only the back. 
Thank you very much for coming this evening. 

The hearing was carried to June 17 at 7:30 p.m. at Benjamin Franklin Middle School.
The Board returned to the meeting and the meeting was adjourned at 9:22 p.m.

      Respectfully submitted,
      Jane Wondergem
      Board Secretary

Date approved: July 7, 2015