June 20, 2014 Paul Weiss, Esq. Chief Legal Counsel Casino Reinvestment Development Authority 15 South Pennsylvania Avenue Atlantic City, NJ 08401 RE:
Shore Health Enterprises, Inc. 10 South Michigan Avenue Block 159, Lot 1.02 RS-C Zone Application #2013-09-812
Dear Mr. Weiss: As per your direction, we have reviewed the above-referenced development application. In the subject application, the Applicant had previously been granted a permit to occupy the ground floor of the Caesars Atlantic City Casino Hotel parking garage with a professional medical office use. The Applicant is currently utilizing 8,000 square feet of the building’s space for a medical facility. The property is located in the RS-C “Resort Commercial Development” District. Following the issuance of a building permit and occupation of the space, an interested party filed an objection, stating that the permit was issued in error, proffering the use is a clinic, not a medical office. The purpose of this letter is to outline the issues and provide a zoning interpretation as to whether the subject use is a medical office. As part of our analysis, we undertook the following tasks: an inspection of the subject premises; a survey of surrounding land uses; review of the City of Atlantic City Zoning Ordinance and Zoning Map; review of the Atlantic City Master Plan as well as the Tourism District Master Plan; review of relevant case law related to the granting of variances; review of the filed application materials; review of Resolution No. 11-04 adopted by the City of Atlantic City Planning Board; review of correspondence from the Applicant; review
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of correspondence from an Interested Party1; and review of hearing transcripts and attendance at all public hearings on the matter. We offer the following analysis and comments for your consideration. Description of Site and Summary of Development Proposal The Applicant occupies the ground floor level of Caesar’s Hotel Casino parking garage with an ambulatory care medical office known as “Shore Crucial Care.” The parking garage is situated on a city block bounded by Michigan Avenue to the east, Arkansas Avenue to the west, Atlantic Avenue to the north, and Pacific Avenue to the south. The medical office occupies a portion of the ground floor with frontage on Pacific Avenue and vehicular access on Michigan and Arkansas avenues. The Applicant currently operates the medical office in the designated ground floor area of the garage, which consists of a reception area, approximately 17 exam rooms, 2 observation rooms, 1 procedure room, 1 CT room, 1 digital x-ray room, and other support space. The office offers medical treatment to patients with a full range of medical conditions. Surrounding Land Uses Surrounding uses include the entrance lanes and other ground floor space of the parking garage to the north, Caesar’s Hotel Casino across Pacific Avenue to the south, the AtlantiCare Regional Medical Center across Michigan Avenue to the east, and an open air parking lot across Arkansas Avenue to the west.
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New Jersey Municipal Land Use Law (40:55D-4): "Interested party" means: (a) in a criminal or quasi-criminal proceeding, any citizen of the State of New Jersey; and (b) in the case of a civil proceeding in any court or in an administrative proceeding before a municipal agency, any person, whether residing within or without the municipality, whose right to use, acquire, or enjoy property is or may be affected by any action taken under this act, or whose rights to use, acquire, or enjoy property under this act, or under any other law of this State or of the United States have been denied, violated or infringed by an action or a failure to act under this act.
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Analysis Prior to determining if the use is a clinic or medical office, we must deal with the issue raised relative to compliance with a prior condition of approval in conjunction with the approval granted to Boardwalk Regency Corporation (Resolution of Approval in the Record for the subject application as A-7). In conjunction with the aforementioned approval, the applicant requested and was granted relief from Section 163-74E of the Urban Design Standards section of the Atlantic City Land Use & Development Code requiring that in the RS (Resort Service) District, every face of a structure fronting on a public sidewalk shall at the street level adjacent to the structure be designed predominantly for entrance lobbies and retail commercial uses. In conjunction with the Boardwalk Regency Corporation request for Final Approval, the City’s Planning Department issued a review memorandum dated February 23 rd, 2004 (entered in the Record as A-8 in conjunction with the current application). We are particularly interested in “Preliminary Comment No. 10” from said review letter which states: “A commitment to retail space along the Pacific Avenue frontage should be provided in order to comply with Ordinance requirements. All references to “office space” should be deleted. Status – Partially Satisfied 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 planning process in the subject application has been enriched by having testimony from the former City Planning Director, William Crane, who participated in the public hearings for the Boardwalk Regency Corporation application, and issued the February 23, 2004 review memorandum. As such, I specifically questioned Mr. Crane during the public hearing process on June 5th, 2014 after going through both A-7 and A-8 with him: “So then I would be correct in saying that the City, during the proceedings of that 2004 hearing, in the resolution, clearly intended to give relief from that section of the ordinance, those urban design standards, with a directive to the applicant at that time, make an attempt? Mr. Crane’s response was in the affirmative that the relief was previously granted and the condition was satisfied. Since Mr. Crane is a licensed Professional Planner with decades
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of experience, and most importantly, the Planner who issued the review memorandum and participated in the Boardwalk Regency Corporation public hearing process, I found his testimony to be relevant and credible. Zoning Compliance The property is located in the RS-C District, which purpose is enunciated at Ordinance Section 163-58(A) as follows: The RS-C Resort Commercial District is intended to apply to established resort areas in the city. Its purpose is to provide for the city’s main industry, consisting predominately of transient and tourist-oriented uses, at such intensity as is justified by the city’s limited land resources, high land values and infrastructure capacity. Residential development is also encouraged for the purpose of preserving and enhancing the family-resort character of the city and integrating the specialized activities of the Resort Commercial District with the rest of the community.
The RS-C District at Section 163-58(A) permits medical offices, a term that is undefined in the City’s Ordinance. The Applicant contends the subject use is a medical office. An Interested Party contends that the subject is a clinic, thereby requiring extensive testimony regarding the operation. A Medical Office is listed as a permitted use in the RS-C District, while a Medical Clinic is only a permitted use in the CBD and RS districts. A “clinic” is defined in the Atlantic City Land Use & Development Code as follows: “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.” Prior to a 2008 zoning amendment, the RS zone permitted medical office, laboratories, hospitals, and clinics. Master Plan Review The subject property is located within the Atlantic City Tourism District. Pursuant to the New Jersey CRDA Atlantic City Tourism District Master Plan, the overall intention and vision of the Master Plan is to “reinvigorate Atlantic City in the near-term as the leading resort destination in the Northeast and beyond (Page 4, New Jersey CRDA Atlantic City
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Tourism District Master Plan). Among others, overarching objectives are to “develop an economically viable and sustainable tourism district” and “[expand] Atlantic City’s tourism and economic bases” (Id, Page 1-2). Planning Analysis and Issues for Consideration by the Authority We offer the following for your consideration in reviewing the Application: 1) The Applicant contends that the subject use, a facility serving patients that require urgent medical care, is a medical office, and thus permitted in the RS-C District. The Interested Party views the subject use as a clinic, which is not listed as a permitted use in the RS-C District. 2) As established in detailed testimony by the Applicant, the subject use consists of a reception area, approximately 17 exam rooms, 2 observation rooms, 1 procedure room, 1 CT room, 1 digital x-ray room, and other support space. 3) Based on the evidence submitted and testimony provided, it is our position that the subject use is a medical office and therefore permitted. 4) We are particularly swayed by the testimony of the Applicant’s Planner. First, the planner argued that it is commonly known in the physician community that patients are not “admitted” in a medical office, which is one element of the Ordinance’s definition of clinic. 5) The Applicant’s Planner also analyzed the function of “examination and treatment of two or more physicians” as contained in the Ordinance’s definition of clinic. The planner cogently noted that a medical office, which is undefined in the Ordinance, does not simply become a medical clinic when such a use contains more than one physician. 6) The Applicant’s Planner concluded that the subject use 1) does not admit and 2) there is only a single physician in responsible charge of the treatment in this office. This is simply an evolved medical office with a single physician practicing in the emergency medicine field with assistance from nurses and other professionals. 7) The Applicant’s Planner further notes that there is simply no way to read the definition of clinic to include this use, unless it is read to include virtually all medical
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offices as clinics as well, adding that there is no rational distinction to be made between an emergency physician’s facility and an orthopedists, or any other equipment-heavy specialist. 8) The Applicant’s Planner concluded that the subject use functions as a medical office, which while undefined, is consistent with “typical medical office use”. If fact, when questioned on June 5th, 2014 as to what constitutes a medical office the Interested Party’s planner testified when describing a medical office …”they may have some diagnostic equipment in there…”. 9) It is our position that two physicians or “similar professionals” practicing together would render any medical use a clinic under the literal definition if such use admits patients, which the Applicant’s Planner represented that in interviews with various physicians, does not occur in a typical urgent care medical facility. Presumptively, if a solo practitioner employed a nurse in an office that accepted patients – even if they were admitted – such a use does not, under common sense vernacular, automatically become a clinic. 10) Significantly, as referenced in Exhibit A-9, the City processed an application for a medical office on a separate parcel not party to this application by the Interested Party’s predecessor in title. That use is not materially different than the subject use. Interestingly, both clinics and medical offices are permitted in the zoning district governing that parcel and the applicant at that time chose to classify the use as a “medical office.” The floor plans for that application were likewise presented in the subject case and we find no radical difference between that use being considered a medical office or the subject use being considered a medical office. Based on the evidence presented and testimony, it is our position that the subject use is a medical office and therefore permitted by-right in the RS-C District. I would be happy to address any questions or comments on the above at the next public hearing. Respectfully submitted,
Christine A. Nazzaro-Cofone, AICP, PP Principal
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