Navesink House ruling reversed
Judge says board erred
in denying application
to enlarge senior facility
By john burton
Staff Writer

Astate Superior Court judge has ruled in favor of the Navesink House senior facility, overturning Red Bank’s Zoning Board of Adjustment denial for the facility’s proposed addition.

Last week Judge John D’Amico Jr., sitting in Freehold, decided that the Navesink House’s plan to build a 36-unit addition to its Riverside Avenue continuing-care senior facility, did meet the standard of being an "inherently beneficial use," under the state’s land use law.

D’Amico also determined that the board’s decision was "arbitrary and capricious," the established legal criteria for overturning a board’s decision.

The Navesink House, 40 Riverside Ave., is a continuing-care senior facility, established by American Baptist Estates of Red Bank in 1968. The facility provides three tiers of care for its approximately 205 residents: independent living, assisted living and nursing care.

The facility had applied to the borough’s Zoning Board of Adjustment to build a 55,000-square-foot addition that would consist of the 36 units and such amenities as an underground garage, a library, and dining and social areas.

The Navesink House had maintained during the public hearings on the application that the addition was necessary to accommodate the growing waiting list. The facility operators also argued that, as senior housing, the proposed addition was an inherently beneficial use to the community.

The application, however, was opposed by some area residents.

Those living at the Riverview Towers cooperative apartment complex, 28 Riverside Ave., objected to the plans, because they said the addition would negatively impact on their quality of life, by increasing traffic in the area and by obstructing the river view of some of the residents, as well as affecting property values.

Also battling the application were residents of the Navesink Gables apartment building, located next door to the Navesink House — and the proposed site of the addition.

The Navesink House had purchased the 36 Riverside Avenue property in 1993, and planned to raze the building to make way for the addition.

But Bruce Freeman, the attorney representing the Gables’ residents (as well as the interests of Riverview Towers), argued that the Navesink House was attempting to tear down affordable housing to construct luxury apartments, a violation of the state’s fair housing law and landlord/tenant statute.

That argument was later rejected by D’Amico, in a separate ruling earlier this year.

In its decision to deny, the borough’s Zoning Board ruled the Navesink House failed to make its case that the benefits of the plan outweighed the detriment, and the facility was simply emphasizing its own economic needs.

The board also insisted that the borough has done more than its fair share of providing senior housing, and felt no obligation on those grounds. And after about a year of lengthy, sometimes contentious, hearings, the board ultimately declined to grant the numerous variances the project would have required to move forward.

In his ruling, the judge ruled that variances for use, height, rear yard setbacks, and sideyard buffers be granted.

However, according to Bruce Clark, the attorney representing the Navesink House, D’Amico did not order the board’s denial of other variances, including those for parking and front yard setback, to be vacated, but said the board should reconsider them.

Clark noted, by the court’s ruling, the Navesink House’s positions were upheld, especially the contention that the addition would be of an inherently beneficial use.

There have been numerous court rulings reiterating that a project that is deemed an inherently beneficial use is entitled to a number of presumptions, including a relaxing of the burden of proof that the project would not be a substantial detriment to the zoning plan, Clark explained.

The courts have also ruled, Clark said, that senior housing, as a proposed use is, "a rather high order of importance in our state."

William McCarter, volunteer chairman for the facility’s Board of Trustees, said he found the court ruling to be "absolutely good news."

The Navesink House has said it wants to be a good neighbor, and to that end McCarter said there will be an attempt to have a dialogue between the senior facility and Riverview Towers.

"We are their [Riverview Towers] next door neighbor, and we want to discuss things with them," McCarter said.

"We are anxious to redevelop a friendly relationship," remarked Charles E. Peters, president of the Navesink House.

John Austin, president of Riverview Towers cooperative board, said his board has not decided whether to pursue the matter any further at this time.

But the Navesink House will have to reappear before the Zoning Board on the remaining needed variances, which also includes one for parking. Austin said that he and the other towers’ residents will be watching closely when this comes, once again, before the board.

"It’s not over yet," he said.

For the board, the proposed addition is "still not acceptable to people in Riverview Towers," Austin said.

"It may be a checkmate but is it a victory?" he asked.

Austin said his board has reached out to Peters to keep the lines of communication open, though he does concede he is disappointed.

"I would have hoped there would have been an accommodation," he acknowledged.

Freeman declined to comment on what lies ahead for his clients.

"My clients are reviewing their options," Freeman simply said. "That decision is forthcoming."

But, if Lester Starnes has his way, that decision will be to continue fighting.

Starnes is one of 11 remaining tenants at Navesink Gables, who are collectively paying for the lawyer to fight to keep the apartment building from the wrecking ball.

"I want to appeal," Starnes said.

Starnes said the Navesink House is a contained community for the affluent, and tearing down the Gables will displace moderate-income residents, some of whom have been living there in excess of 30 years.

The Gables residents have not met yet to discuss the options, but Starnes has made it clear he wants to continue the fight, and would do it alone if he had the financial resources.

"Believe me," he said. "They haven’t heard the last of me."

Kevin E. Kennedy, the attorney representing the board, said he really could not go into much detail until he discusses the decision with the board.

But, Clark noted, should the borough, or those opposed to the application, wish to continue, the next step would be the appellate court.

But before any additional action is taken, the judge must present his final written opinion. That will probably be made available in a month’s time, Clark said.

The Navesink House hopes to once again appear before the board in early 2002, Peters said.