A Morristown judge on Tuesday slapped a “sober living” residence with approximately $25,000 in fines for operating without a permit.
The decision, delivered during a Zoom hearing, upholds the town’s right to enforce its zoning laws over state licensing designed to provide transitional housing for people recovering from substance abuse.
Town officials welcomed the ruling. For months, residents have voiced concerns about supervision of the facility on Shady Lane, safety, and their property values.
“It’s a cautious win,” said Councilman Robert Iannaccone, whose First Ward includes that neighborhood.
“We are going through the process the right way,” Mayor Tim Dougherty echoed at Tuesday’s virtual council meeting.
Penalties of $100 per day are retroactive to last May, when the town cited Tranquility Estates for running a boarding house in a neighborhood zoned for single family homes.
Those fines will continue every day the venture operates illegally, ruled newly appointed Municipal Judge William Pinilis.
“As it sits before me right now, I have a situation where they were denied a permit, and they’re operating in violation of that denial,” a violation of the town zoning ordinance, Pinilis said during the 45-minute virtual hearing.
He would have imposed even stiffer fines had the town asked, he said.
BOARDING HOUSE OR FAMILY UNIT?
No local permit is needed because the state Department of Community Affairs granted a license last April for a Cooperative Sober Living Residence, argued Francis Falkenstein, attorney for Dr. Michael T. Hernando and Connie Hernando, owners of the Shady Lane home.
Up to 10 individuals may be housed there, according to the state license.
Falkenstein said he helped draft DCA regulations creating Cooperative Sober Living Residences.
“The entire point was to … carve out, under certain circumstances, these licenses being allowed in single family residential homes, and to avoid discriminatory zoning by towns to keep people out,” Falkenstein said.
Regardless of the state license, there is no local violation, insisted Falkenstein.
“The entire design in the setup was to mimic a family unit,” which Morristown allows, said the lawyer. He told Pinilis he could not fully answer the judge’s questions, because he has tested positive for COVID-19 and is quarantined, without access to his office files.
Attorney Donald Soutar, representing Tranquility Estates, also sounded a we-are-family defense.
The town has “cited us for violating a provision relating to rooming houses and boarding houses, neither of which my client operates,” he said.
Soutar asked Pinilis to reduce the fines to $1 per day, to no avail. He also pressed a technical argument, suggesting the town had no permit application to deny, because Tranquility Estates never paid a filing fee.
The only reason his client submitted that application at all was because the town requested it, Soutar asserted.
“It was certainly not required. And we did it because we were new to the town, we wanted to be a good neighbor in the town. And we thought that it was, you know, quite frankly a ministerial act, in this case, given the clarity of the DCA regs,” he said.
Tranquility Estates should have appealed the permit denial by Zoning Officer James Campbell to the town zoning board, countered Municipal Prosecutor Robert Rudy.
“That was the proper procedure. And because they didn’t do that, they simply continue to operate. And that’s the problem that we have,” Rudy said.
The judge agreed, adding:
“For what it’s worth, I find that this use is more like a rooming house, than it is like a family. I don’t think this use meets… the municipality’s definition of the family.”
The town tried to shut down the operation last year. But a Superior Court judge declined to issue a cease-and-desist order, and the matter returned to municipal court.