By Lea Kahn, Staff Writer
The proposed developer of a 38-bed residential drug and alcohol detoxification center in the township has said he will appeal its rejection for a second time by the Zoning Board of Adjustment.
It was standing room only as the board rejected the controversial application to open the center in an office park at 100 Federal City Road during its regular meeting Nov. 14.
The board voted to deny the use variance application for Sunrise Detoxification Center and the Simone Investment Group LLC before a roomful of residents most of whom opposed the plan. The zoning board was ordered to reconsider the application by Mercer County Superior Court Judge Mary Jacobson.
As the residents filed out of the meeting room, applicant John Simone, who is a principal in the Simone Investment Group, said it’s “back to the judge” who ordered the zoning board to reconsider the application. An appeal will be filed, he said.
The zoning board was instructed to reconsider the request for the use variance, after the applicants sued in Mercer County Superior Court to overturn the board’s denial of the application in June 2011. The judge sent it back to the zoning board, ruling that a detoxification center is an inherently beneficial use.
Last week, Zoning Board of Adjustment member Sam Pangaldi cast the lone “yes” vote to grant the use variance. Board members Bruce Kmosko, Peter Kremer, Frank Scangarella and chairman Stephen Brame voted “no.”
Zoning board members Charles Lavine and Edward Wiznitzer recused themselves because of conflicts, and the seventh zoning board member, Leona Maffei, was absent because of illness. Five “yes” votes are needed to grant a use variance.
A use variance is needed because a residential drug and alcohol detoxification center, in which clients are weaned off alcohol and drugs before being sent off for counseling, is not a permitted use in the Professional Office zone. The zoning would permit an outpatient facility, however.
The four zoning board members who voted against it again last week disagreed that this particular use on this specific site constituted an inherently beneficial use, which is defined as a use that benefits the general public and the common good. Examples of an inherently beneficial use are schools, hospitals and houses of worship.
Mr. Brame, the zoning board chairman, outlined the issues and considerations that the board was ordered to use. The court found that a residential detoxification center is an inherently beneficial use, he said, but “as we understand ‘inherently beneficial,’” not all inherently beneficial uses “are of the same quality.”
Some inherently beneficial uses are more compelling than others, Mr. Brame said. When considering whether a use is inherently beneficial, a zoning board is required to think about whether the negative aspects outweigh the positive aspects, and whether the negative aspects could be mitigated by conditions imposed by the board.
Mr. Kremer, who voted against the use variance when it was presented to the board in 2010 and 2011, said he stood by his earlier position against it and noted that not all inherently beneficial uses are equal.
”What we have here is an inherently beneficial use, but one that serves a limited segment of the public,” which results in a limited public good, Mr. Kremer said. The Sunrise Detoxification Center is geared toward clients who can pay for its services through health insurance, and would not accept Medicaid patients.
Mr. Kremer said that while the neighbors objected to the traffic, parking and garbage that would be generated by the detoxification center, that is not enough to warrant a denial of the application. The neighbors’ fears for their own safety is not enough to reject the application, he said.
Mr. Kremer pointed out that when Township Council changed the zoning on the parcel from Education Government and Institution which would have permitted the proposed use to Professional Office in 2004, two Township Council members said that around-the-clock uses would not be permitted.
It is not the Zoning Board of Adjustment’s role to question the wisdom of Township Council, he said.
Mr. Kmosko, who also voted against the application, said that while some people would benefit from the detoxification center, the overall benefit “would be marginal” because the poor and the indigent would not have access to those services.
He also said that Township Council made it clear that it did not intend for the uses to be 24 hours, seven days a week in the Professional Office zone and that “this is critical to me. I don’t think that I have the power to override (the council’s decision).” The PO zoning allows for medical offices, lawyers’ offices and similar uses.
Mr. Brame, the zoning board chairman, said he had given the issue much review and thought, and consideration of the concerns of the public but in the end, it is a matter of the Professional Office zone and what it permits that is of concern to him.
Mr. Brame compared the PO zone to the EGI zone. The PO zone allows professional offices and related uses that are less intense, compared to the uses permitted by the EGI zone that include public and private day schools, houses of worship, municipal government offices and health care facilities including outpatient clinics.
Township Council made a “conscious decision” in 2004 to abandon the EGI zone for the PO zone, Mr. Brame said. For the past eight years, prospective buyers and residents in the two housing developments on either side of the office park were led to believe that less intense uses would be accommodated there, he said.
Pointing to the around-the-clock character of the proposed detoxification center, Mr. Brame said “this application does not enunciate a low-intensity use. It does not carry the day.” At the core of the application is the 24-hour-a-day, high intensity use whose negative impact cannot be ameliorated or lessened, he added.
Society cannot deny the need for the services that the residential detoxification center would provide, but the Federal City Road site is not the proper location for it, Mr. Brame said. It belongs in the EGI zone, he said, adding that the township does not discriminate against such uses. It just can’t happen on this parcel.
Mr. Pangaldi, who made the motion to grant the use variance, pointed to Judge Jacobson’s ruling that “it is beneficial to the public to provide a detoxification center for individuals addicted to prescription drugs and alcohol.”
”It is a great opportunity you can offer a person in this unfortunate position in their life. I feel it would be beneficial to have this center in place. This center will offer individuals that have insurance or cash the opportunity for medical assistance,” Mr. Pangaldi said.
Noting that the PO zone would allow an outpatient substance abuse detoxification center, Mr. Pangaldi argued that Sunrise Detoxification Center’s proposal is less detrimental because it is a lower-intensity use. An outpatient clinic would generate more traffic, for example.
The Sunrise Detoxification Center’s proposed residential use, which monitors the clients’ movements, is less detrimental than having a “walk-in, walk-out treatment center when every Joe Schmo is coming off the street,” Mr. Pangaldi said.
Attorney Christopher Costa, who represents the applicants, said the appeal will go back to Judge Jacobson, who retained jurisdiction over the lawsuit. She can either overturn the zoning board’s decision or send the application back to the board if she feels that there is a factual issue that the board did not address correctly, he said.

