Overlook Denies Residents' Request For Representation in Appeal

Atlantic Health has denied a request from Attorney Michael Kates to "intervene" on behalf of residents during the regarding 's application to build a helipad on the hospital's roof.

"Based upon the belief that the legitimate interest of the public and the Board of Adjustment of the City of Summit are coordinate and that the public's interest will be most adequately represented through the Board of Adjustment's attorney, Dennis Galvin Esq., your request for the appealant's consent to intervention is denied," reads a letter from Overlook Hospital to Kates dated Feb. 23, 2011.

Kates said he plans to file a motion this week appealing Atlantic Health's denial of intervention.

"I don’t see how a judge can keep us out," he said, citing the fact that many of his clients are directly effected by this project as they are within 200 feet of the hospital. Kates originally represented a group of five families in the initial Zoning Board hearing's but now the residents are united under one monikor: Citizens Against the Helipad.

Atlantic Health officially filed its complaint stating its wish to appeal the Zoning Board's decision on Jan. 28. The Zoning Board memorialized their to deny the hospital's application to construct a helipad on the roof of the C-wing in a resolution dated Dec. 6, 2010.

The Highlights of the Complaint

• In the complaint obtained by Summit Patch, Atlantic Health charges that the Zoning incorrectly determined in June 2010 that the helipad could not be classified as an accessory use and therefore the board incorrectly required use variance relief. In addition, Atlantic Health is charging that the Zoning Board's decision to not classify the helipad as an accessory use was "arbitrary, capricious, unreasonable and otherwise unlawful."
• The complaint also charges that the Zoning Board, while determining the helipad was an inherently beneficial use, then incorrectly applied the "Sica" test which requires the board identify the public interest at stake and a determination of the extent of the positive benefit associated with the proposed use. Atlantic Health purports that the "Overlook Neuroscience Helipad Project" would "significantly advance important health care services and benefits provided by Overlook and the Neuroscience Institute."
  
  "In disregard of the law and evidence, the Board concluded in the resolution that the Overlook Neuroscience Helipad Project was not as compelling as general hospital use," the complaint reads. "The Board's determination was based on an improper parochial view that improved health care services that would result from implementation of the Overlook Neuroscience Helipad Project were not important because these services could be obtained at other health care facilities outside of Summit."
• The complaint also disagrees with the board's decision that the helipad project is not necessary for the hospital's Comprehensive Stroke Center designation and that it would not substantially improve the outlook for stroke patients.
• The complaint also says the board's decision was in direct contradiction to the testimony regarding potential detrimental effects, was based on speculation regarding the landing of a State Police helicopter in cases of extreme medical emergency and an "irrational finding of a potential for mid-air collision." It also took issue withe board's decision be being based on concern for negative effects on property values and lighting disturbances.
  
  "Numerous conditions of approval were offered by AHS during the course of the hearings, including conditions specifically directed at limiting the frequency of air transport flights and thus minimizing perceived noise impacts," the complaint reads. "The Board improperly and erroneously concluded that proposed conditions would not be enforceable due to asserted preemption by federal and state law."
• The complaint also reiterates the hospital's position that the height variance relief involved "limited changes relative to existing conditions at a site that is particularly suited to accommodate the proposal" and that the proposal to relocate several antennas involved a "net improvement" again relative to existing conditions at a site the hospital purports is "suited to accommodate the proposal."
• The hospital claims the board based its decision on "irrelevant, immaterial and highly prejudicial evidence in the form of witness testimony, documentary and expository evidence" regarding Morristown Memorial Hospital and relative to air traffic safety, which is subject to regulation by the Federal Aviation Administration.
• The complaint also targets the common council for amending the city's Development Regulation Ordinance in August to say that helipads and heliports shall not be considered accessory uses.
  
  The complaint says the amendment is "unclear and impermissibly vague," "is subject to arbitrary and indiscriminate interpretation or application," and the ordinance "imposes an unreasonable and unnecessary restriction on permitted uses of property."

The Judgment

• Atlantic Health is asking for the court to grant them approval to construct the helipad, subject to terms and conditions deemed necessary by the court.
•  To award attorney's fees, costs and expenses associated with the appeal.
• To find the Board of Adjustment violated the constitutional rights of Atlantic Health.
• To declare the ordinance amended by the common council in August to exclude helipads as accessory uses as unconstitutional.

Galvin said he does not feel the actions of the board amount to a violation of the applicant's constitutional rights but he was not surprised by anything in the complaint.

"I think the board did an awesome job in their deliberations and I think we applied the Sica balancing standard test and I think the court will see that," Galvin said.

Kates said the only thing that surprised him was the complaint against the ordinance passed by common council amending the city's DRO regarding accessory uses.

"I don’t think they had to do that," he said.