Download Variance Relief Required

Shore Health Services Application
Planning Report Prepared by Kevin J Dixon, PE, PP, CME
For March 20, 2014 Hearing of Shore Health Enterprises
REASONS WHY SHORE HEALTH CANNOT LAWFULLY OPERATE ITS USE AT BLOCK 159 LOT 1.02
EXCISION OF 2004 CONDITION OF APPROVAL
Condition 3 of the 2004 of Planning Board Resolution 11-04, which granted site plan and variance
approval in order to construct the Transportation Center on the Property imposed a condition to the
approval that a commitment be made to retail space along the Pacific Avenue frontage of the building.
Project Summary
The project was approved February 25, 2004, as part of the Caesars Parking Garage, also known as the
Transportation Center. The project consisted of over 3,000 parking spaces on a property which
consumed the AtlantiCare parking garage. Part of the application included 7,000 square feet of retail
space on Pacific Avenue. The original application proposed the space for office/retail space. However, in
the review of the project by the Atlantic City Planning Department, Comment Number 10 reads:
“A commitment to retail along the Pacific Avenue frontage should be provided in
order to comply with Ordinance requirements. All references to office space should be
deleted.
Comment: The applicant has agreed to remove the office use and will explore the
feasibility of marketing of retail space with the Cordish Group.”
The applicant eventually constructed an ambulatory health care facility in the space in contravention of
the approved project and the express provisions of the Decision and Resolution requiring compliance
with the conditions set forth in the Planning Memorandum.
Relief Required
The requirement to place retail at the Pacific Avenue frontage of the building. The constructed space
requires relief from the Ordinance requirement that prohibited the use from being placed in this
location in the first place, Section 163-74E Urban Design Standards,
“Uses at sidewalk levels in RS-C, CBD, RMC-4 and RS Districts. In all RS-C, CBD, RMC-4
and RS Districts, every face of a structure fronting on a public sidewalk shall, at the
sidewalk level adjacent to said structure, be designed predominantly for entrance
lobbies and retail commercial uses. Parking, mechanical equipment, storage and
similar uses shall not be allowed along any such frontage.
[Amended 6-15-1988 by Ord. No. 1-1988]”
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When the request for that relief was rejected at the staff level of review, and plans were revised to
eliminate this use. In addition, according to the review memorandum, “the applicant has agreed to
remove the office use”. The fact that the word “should” was used, does not relieve the applicant from
its responsibility to comply with the review comment requiring “a commitment to retail”.
REQUISITE PROOFS
Shore must demonstrate changed circumstances that warrant the removal of the condition imposed.
The conditions which brought forth the restrictions against this use have only become more restrictive
against it:
First:
The City of Atlantic City has continuously required retail uses to maintain the facades at
Pacific Avenue, since the earliest days of gaming in Atlantic City. (1985 Ordinance)
Second:
Clinics.
The site was redistricted in 2008 resulting in the deliberate elimination of Medical
Third:
Both the Atlantic City and Tourism District Master Plans are very clear about the vision
for Pacific Avenue, Michigan Avenue and Midtown. Entertainment, night life, retail.
They are also realistic and clear that this is not easy, that does not mean it should not be
done.
Fourth:
This project received variance approval for NOT complying with Section 163-74E as part
of a grand bargain involving numerous parties for a large project with many moving
parts. AtlantiCare was a party to those conversations, as the project directly impacted
their parking. For consideration, AtlantiCare gave up its parking garage, and land in
exchange for various considerations, including parking spaces and compensation for
their property. Their role was to insure the continued operation of the parking long term
and to make sure their parking situation would be improved by throwing their land and
parking garage into the deal.
To revisit a condition of that approval should require a revisitation of the entire Caesars Transportation
Center, and any variance relief should be considered as part of the original bargain, because that is the
bargain that is being violated, whether or not that information was provided on the CLUC application.
The fact the information was not provided, obscures the fact that this variance relief (Michigan and
Arkansas Avenues) was part of a larger bargain struck in relation to the Caesars Transportation Center
project.
Michigan Avenue and Arkansas Avenues were designated as pedestrian corridors between the Walk and
Pacific Avenue and between Pacific Avenue and the Boardwalk. There has been a consistent vision for a
number of years of maintaining an emphasis on retail uses on Pacific Avenue, particularly in this exact
location, due its proximity of being in a straight line between the Walk and The Pier. Rather than this site
being crowded out by the Walk and Pier, the stage has been set for the next phase of retail commercial
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development in Atlantic City. This is not marketing testimony, nor is it intended to talk about markets.
No market evidence was provided. Rather, this is land use testimony having to do with the Master Plan’s
vision for Pacific Avenue, Michigan Avenue and the Midtown District.
The applicant has failed to demonstrate any plausible reasons why the condition of approval should be
lifted by the CRDA, specifically by failing to provide any meaningful testimony about the bigger picture
of where this exact location fits into the overall Transportation Center approval project. The CRDA must
deny the application on those grounds alone.
VARIANCE REQUIRED TO DEVIATE FROM CODE SECTION 163-74E – URBAN DESIGN STANDARDS
Uses at sidewalk levels in RS-C, CBD, RMC-4 and RS Districts. In all RS-C, CBD, RMC-4 and RS Districts,
every face of a structure fronting on a public sidewalk shall, at the sidewalk level adjacent to said
structure, be designed predominantly for entrance lobbies and retail commercial uses. Parking,
mechanical equipment, storage and similar uses shall not be allowed along any such frontage.
[Amended 6-15-1988 by Ord. No. 1-1988]
C(2) Variance Relief Required
Variance relief is requested under NJSA 40:55D-70 c(2) for a flexible c variance. The case for that
variance requires the following findings, which I believe the applicant has not made.
REQUISITE PROOFS
Positive Criteria:
C (1): Strict application of the Code requirement would result in peculiar and exceptional practical
difficulties to, or exceptional and undue hardship upon, the developer of such property; or
C (2); The purposes of the MLUL would be advanced by a deviation from the zoning ordinance
requirements and the benefits of the deviation would substantially outweigh any detriment
Negative Criteria:
1st Prong: Relief may be granted without substantial detriment to the public good; and
2nd Prong: Relief may be granted without substantially impairing the intent and purpose of the zone plan
and zoning ordinance.
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The benefits:
The applicant stated that this ambulatory health care facility is of benefit to the surrounding
neighborhood because it is servicing the casino customers, employees, and tourists. I find that no
benefit was offered in the applicant’s testimony, which is justification for zoning by variance, rather than
by legislation. I found that no special feature of this ambulatory health care facility is offered, which
would create a benefit which could not be obtained in the CBD district, where such a use is permitted,
and where there are no conditions broadly in that district particularly unsuitable for placement of this
facility. For this reason I see no particular benefit at all. It is my opinion that no benefit accrues to the
City of Atlantic City, or the State of New Jersey in the Tourism District, when this same facility could be
located in a district which allows this use.
The detriments:
Atlantic City has spent many long years constructing a district in which the stage has been set for the
construction of a retail corridor. The Master Plans for both the City and Tourism District provide for a
vision for finally achieving that plan that has been around since the dawn of gaming, and this use in this
particular location will have a particularly despoiling effect on the vision for Pacific Avenue. Atlantic City
is recognized as a City in distress by the very legislation that created the Tourism District and is now
being asked to abandon the vision that was adopted 2 years ago for something that does not need to be
in this location. Such an approval will undermine the entire vision for the Pacific Avenue corridor as well
as the Midtown District. Especially since this particular retail frontage on this particular block serves as
the only retail space along the main pedestrian corridor between the Walk and the Boardwalk. That is
precisely why variance relief was not recommended for this parcel in the Atlantic City Planning
memorandum of February 23, 2004.
The applicant in my opinion has not presented a benefit which could not be derived from this use
lawfully existing in a district where it is permitted, without violating and existing condition of approval,
and consequently has not demonstrated that “the benefits of this project substantially outweigh any
detriments.
The negative criteria will be discussed below and is offered for both the c(2) variance and the d(1)
variance requests.
Interpretation
An interpretation of the use is being requested, for consideration as a Medical Office, and not a Medical
Clinic:
“MEDICAL OFFICE” VS. “CLINIC”
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“Medical Office” – undefined by City Code.
“Clinic” – An establishment where patients who are not lodged overnight are admitted for examination
and treatment by two or more physicians, dentists, psychologists, social workers or similar professionals
practicing together. Code Section 163-15.B.
D (1) Variance Relief Required
CLINIC – REQUISITE PROOFS
USE VARIANCE
Refer to Flow Chart
NOT INHERENTLY BENEFICIAL USE
Positive Criteria:
The site is particularly suited for the proposed use.
Negative Criteria:
1st Prong: Relief may be granted without substantial detriment to the public good; and
2nd Prong: Relief may be granted without substantially impairing the intent and purpose of the zone plan
and zoning ordinance.
INHERENTLY BENEFICIAL USE
Positive Criteria:
Presumptively satisfied upon demonstration of need.
Negative Criteria:
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1st Prong: Relief may be granted without substantial detriment to the public good; and
2nd Prong: Relief may be granted without substantially impairing the intent and purpose of the zone plan
and zoning ordinance.
The use that the applicant is proposing is not a permitted use, based upon its definition from a land use
perspective.
The applicant has set forth their reasons in support of the variance relief and including the
interpretation.
Factual Basis according to applicant:
Reasons:
a. Retail won’t work on Pacific Avenue: glass store fronts; “empty for ten years”; no evidence was
offered as to WHY the space has been empty for years, or what Caesars had done to market the
space. (Bad math: The building is not yet ten years old).
i.
Actually the relationship of the Walk to the Pier assists pedestrian activities through this
area because people often go to both and pass right by this spot.
ii.
The Urban Design Standards have been in existence since 1978. It is not like the City has
ignored the status of the retail uses along Pacific Avenue, but rather has spent
painstaking years and professional effort preserving the integrity of the retail capability
of this street through years of planning and requiring retail along Pacific Avenue
iii.
Reasons abound why the casinos may not want retail along this stretch of road, and
have resisted putting actual shops along the street. No evidence was offered to support
any reason why no retail is there. In a “normal marketplace” empty space is self evident,
nobody wants to be there. In Atlantic City, it is possible the landlord does not want a
tenant there because it competes with the casino’s interior retail space, and is not
enough of a revenue generator to make a difference.
b. The Master Plan was prepared in error and the zoning ordinance followed the same erroneous
thought process by excluding the hospital as a permitted use in the expansion of the RSC
District. By inference it is suggested that this “glaring omission” was evidence that it was
erroneous to eliminate the clinic use from the expanded RSC District.
i.
The uses were deliberately excluded from this district, as evidenced by the fact that a
conscious effort was made to keep one of them (multifamily dwellings) in.
ii.
Hospitals are permitted in the CBD district, and this one has nowhere else to expand to.
Also, there have been discussions about moving the hospital, why zone it in as a
permitted use?
iii.
Leaving the CBD designation would be detrimental to Bally’s future ability to expand if
the hospital should ever relocate.
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iv.
Leaving it CBD would potentially open up the possibility of a use inimical to the RS-C
district buying out the hospital just so it could locate in close proximity to the casinos.
v.
Changing the RS-C district to allow hospitals could potentially open up the district to
more hospitals.
vi.
Limiting the district to one hospital has the same risk as iv above, except that this time
another hospital may buy out ARMC City Campus to put up another hospital in the
district, which would not be appropriate.
vii.
ARMC has consumed almost the entire block, and most likely will not be expanding
upward, so it has reached its limit. Any more expansions will be small and can be dealt
with as an inherently beneficial use.
c. The definition of clinic is so broad and so vague as to encompass all other medical offices, and if
excluded from this district it would exclude so many medical uses as to not permit any of them.
Or, alternatively a “new” use is created which is yet undefined, which makes it Inherently
Beneficial. The applicant used the idea that it has been shown in the past when innovative, or
“specialized” facilities were brought into existence.
Discussion of Proofs
A variance may only be granted upon clear and specific findings that the applicant has met the burdens
of proof set forth in NJSA 40:55D-70 c (2) and d (1). Those proofs include:
NJSA 40:55D-70 d (1):
A finding that this is a particular case there are special reasons, meaning this site is particularly suited for
the use intended, and the use is not inconsistent with the intent and purpose of the master plan and
zoning ordinance (zone plan and zoning ordinance).
If not inherently beneficial, the applicant must prove and the board must specifically find that the use
promotes the general welfare because the proposed site is particularly suitable for the proposed use. It
must be shown to benefit the general welfare as compared to the convenience to its patrons.
i.
What about the Marina District? Does this serve them as well?
a. If so, this location is not particularly suitable, because it would be just as convenient in
the CBD,
b. if not, it cannot even serve all of Atlantic City casinos, let alone the general public.
c. Additionally, certain people are turned away over financial considerations.
The proofs must (and I believe failed to) reconcile the grant of a variance with the purposeful omission
of the proposed use from the ordinance. The applicant argues that the City changing the Hospital from a
permitted to a non-permitted use is evidence of an oversight, quoting the Director of Planning as saying,
“Nobody brought it up”. This is not evidence of an oversight, except a possible oversight on the part of
the Director of Planning. In fact, there is tangible black and white evidence right in the Master Plan of
the fact that the clinic use was deliberately excluded. The fact that the section dealing with the
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expansion of this district mentions the carry over of one use, multi family dwellings, expressly to protect
that use from extinction when the zone changes, is tangible evidence the drafters examined the uses
that would be rendered non-comforming and chose one of those to remain. This is evidence of the
deliberate exclusion of the clinic use, as well as the other uses not already permitted in the RS-C district
as well.
The discretion to grant a use variance is thusly narrowed for a use that was deliberately excluded from
the zoning ordinance. Based on the evidence that another use (multi family dwellings on the second
floor and above) was deliberately Included in the ordinance represents in my opinion a deliberate
omission of the proposed use.
Case law recognizes three categories of circumstances in which the "special reasons" required
for a use variance may be found: (1) where the proposed use inherently serves the public
good, such as a school, hospital or public housing facility, see Sica v. Bd. of Adjustment of
Wall, 127 N.J. 152, 159-60 (1992); (2) where the property owner would suffer "undue
hardship" if compelled to use the property in conformity with the permitted uses in the zone,
see Medici v. BPR Co., 107 N.J. 1, 17 n.9 (1987); and (3) where the use would serve the
general welfare because "the proposed site is particularly suitable for the proposed use."
Smart SMR, supra, 152 N.J. at 323 (quoting Medici, supra, 107 N.J. at 4). (Saddle Brook)
The use proposed was not zoned out of existence in the City. Rather there is a fairly expansive area in
the CBD such as South Carolina Avenue, where the use is permitted. If the use had been proposed on
South Carolina Avenue we would not be here right now, because it is permitted on South Carolina
Avenue.
The applicant argues: “This is a site looking for a use”. That is an “undue hardship” argument which is
simply not the case here. A quick tally of permitted uses in this district in the Ordinance will reveal there
are 124 permitted uses in this district, so it has not exactly been zoned into inutility. For instance, the
applicant called out tattoo parlors as a permitted use, to compare what is permitted to what is not. This
was a stunning comparison, because Tattoo parlors belong in this district and not in certain other
districts. Body ink is increasing in popularity and certainly fits with the edgy nightlife character of this
district in the master plan. Regardless of our differences in our understanding of the Master Plan,
comparing those uses to suggest that a clinic use which is not permitted is preferred over another use
that is permitted, such as a tattoo parlor, (which I am not here to argue), is an argument about zoning,
that belongs in a reexamination discussion, where those types of rational discussions may take place,
rather than setting the stage here for making zoning decisions by variance.
In addition, I would emphasize the fact that this “commitment to retail” was and remains only a small
part of a very large project, a project which accrues a very substantial benefit to the applicant, in
exchange for this “commitment to retail” along this comparatively very small space on Pacific Avenue.
Yet, while the applicant has presented no evidence the space was listed or marketed as such, the
inappropriateness of doing retail in this location remains central to the applicant’s testimony.
Meanwhile, a substantial detriment to the public good is realized quickly when one considers the need
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Atlantic City has identified for the type of character that was deemed in the planning process for Pacific
Avenue (Master Plan), and how the grant of a variance for this use in this location will undermine the
very meaning of that intent, and do irreparable harm to future efforts to attract retail relationships or
potential master lessees (CRDA being the master lessor).
a. To deny is not arbitrary, as the zoning was done rationally, and there were no errors. There
was clear intent.
b. To deny is not capricious, as tangible evidence exists which exhibits facts contrary to the
opinions expressed, which were largely based on conjecture.
c. The only origin of anything related to what may be considered unreasonable about a denial
could be described in terms of the economic impact to the applicant. I would argue that
impact stems entirely from an application that did not fully disclose all the pertinent
information necessary for a well-reasoned permit process to take place, which would have
resulted in a lawful use. The fact that this use is presently not lawfully makes anything
unreasonable a self-inflicted problem.
The applicant has put forth an argument that if the use is not a medical office, because (in their belief)
the use is not a clinic, it is another use not yet defined, and as such, inherently beneficial. We hardly
believe this argument is possible in the context of treating bee stings and dog bites. These do not seem
like specialized medical procedures elevating this ambulatory care facility to the status of inherently
beneficial. It is my impression that only specialized medical uses would be considered inherently
beneficial, while the services offered at this Clinic could be offered in many other locations in the City, as
well as be relocated to the CBD District where the use is allowed. It is the existence of the CAT Scan, the
numerous exam rooms, procedure and observation rooms, and the fact that patients who enter are not
entering to see “their” doctor, but “a” doctor, makes this a medical clinic as it is defined in the Atlantic
City Land Use Development Ordinance.
In my judgment, the distinction between a clinic and a medical office, or doctor’s office is the doctor
patient relationship. In a medical office, you sign up as a patient, you give your information, set up your
financial arrangements and establish a doctor patient relationship, you see “your” doctor, a physician
who sees you regularly, gets to know you and your various medical conditions, and provides medical
care on an ongoing and recurring basis.
A medical clinic is a place where a patient ambulates in and is seen by the first available physician or
other professional depending on their condition. They are processed (“admitted”) each time they arrive,
because they are not coming to see “their” doctor, but rather “a” doctor.
What impact is this to a land use hearing? It has particular import to this hearing. A patient going to her
doctor’s appointment makes a list of things to do, gets her hair done, has lunch with her friends, goes
shopping, perhaps to the market, goes to the doctor, goes to the drugstore to process a prescription,
and perhaps picks up a few extra items there. A patient going to the Clinic walks in with a bee sting, and
goes back to the casino, or hotel, or leaves to go home because the dog bite leaves them in pain. In one
case, the medical office is a piece of the mosaic of the vibrant active lives everyone in the new Pacific
Avenue is living, and is a functional participant in that economy, while in the other instance, the Clinic is
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a one stop destination that in no way encourages active participation in the rest of the Atlantic City
scene. In fact, it is very difficult to do so, when in the course of their treatment, the patient has been
referred to a hospital 16 miles away, which we have heard this facility is doing. This function actively
takes people out of that marketplace and away from Atlantic City on a regular basis. This is the
difference in the relationships that creates a devastatingly negative impact on the one thing Atlantic City
has become almost desperate to do, which is attract more tourists in a diversified entertainment
economy.
There is a suggestion by their testimony that the character of the zone has changed and as a result is no
longer suitable for retail as evidenced by their presentation showing the austere building facades. This is
an argument for rezoning, but also, NOT an argument that the character of the district evolved past the
zoning. It was this character when the CRDA Master Plan was written and that condition was actually
reflected in the Master Plan discussion.
We find that this particular site is not even particularly suitable to this use, as the use could exist in any
one of a number of other locations in the City, and there are 124 uses listed in the Ordinance that are
permitted, regardless of the fact that the applicant made a commitment to retail when the project was
approved, and that commitment was made as a small part of a larger bargain made at the time of the
approval to secure variance relief for two other facades of a massive structure which gained relief on
two other facades.
But that fact is not to be disregarded on its own. The project approvals were the result of an overall,
coordinated review in which the City granted variance relief for the parking garage to not have to build
retail at the ground floor of Michigan and Arkansas Avenues. To revisit that approval should require a
revisiting of the preliminary and final approval of the original application. The case for retail at the
Pacific Avenue frontage should be argued against the backdrop of not having to do retail along Michigan
and Arkansas, and the benefits of that relief to the applicant, in spite of the detriments caused by those
eliminations.
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