7

July 8, 2014 VIA UPS OVERNIGHT MAIL AND VIA E-MAIL: [email protected] Paul G. Weiss, Esq., Chief Legal Officer Casino Re...

1 downloads 53 Views 221KB Size
July 8, 2014 VIA UPS OVERNIGHT MAIL AND VIA E-MAIL: [email protected] Paul G. Weiss, Esq., Chief Legal Officer Casino Reinvestment Development Authority 15 South Pennsylvania Avenue Atlantic City, NJ 08401

RE:

Application of Shore Health Enterprises, Inc. 2100 Pacific Avenue – Block 159, Lot 1.02 Atlantic City, NJ Application No: 2013-09-812 Our File No. 8935-21

Dear Mr. Weiss: As you know, our firm represents Shore Health Enterprises, Inc. (“SHE”) with regard to the above-captioned matter currently pending before you in your role as the CRDA‟s land use hearing officer. Please accept this letter brief in lieu of a more formal reply to the brief filed by the Competitor/Objector AtlantiCare Regional Medical Center (“ARMC”) on July 3, 2014. As detailed below, ARMC only ephemerally cites to the hearing record to support its opposition case to SHE‟s application. Instead, ARMC‟s brief merely draws illogical testimonial distinctions and regurgitates legalisms in a desperate attempt to distinguish the overwhelming affirmative proofs SHE presented

Paul G. Weiss, Esquire-Chief Legal Officer Casino Reinvestment Development Authority July 8, 2014 Page 2 ___________________________________________________ during the six (6) hearings on this application with hardly any reliance on the actual proofs, or lack thereof, presented by the parties during those hearings. POINT I: ARMC MISCONSTRUES THE PLAIN LANGUAGE OF SECTION 163-74E OF THE ORDINANCE. Throughout Point II of its brief, ARMC grossly misconstrues the plain language of both Section 163-74E of the Atlantic City Land Use Development Ordinance (the “Ordinance”) as well as what it alleges to be the unsatisfied condition contained within the 2004 approvals obtained by Caesars for the Transportation Center where SHE‟s office is located today. For convenience‟s sake, Section 163-74E states: “Uses at the sidewalk level in RS-C, CBD, RMC-4 and RS Districts. In all RSC, 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” (emphasis added).

Section 163-74E is an urban design standard within the Ordinance that sets forth a design requirement, not a use requirement. As detailed in SHE‟s initial brief at Page 12, SHE‟s professional planner Mr. Rahenkamp testified that SHE‟s medical office use is not prohibited under this section of the Ordinance. 2T166:25 to 2T167:3. In fact, the only expressly prohibited uses contained within this Section are “parking, mechanical equipment, storage and similar uses”. Mr. Rahenkamp further testified that Section 163-74E does not impose any retail use requirement, but merely is an “exhortation” that structures at the sidewalk level shall be “designed predominately” for entrance lobbies and retail. 2T167:4-12.

Paul G. Weiss, Esquire-Chief Legal Officer Casino Reinvestment Development Authority July 8, 2014 Page 3 ___________________________________________________ POINT II: ARMC ENTIRELY MISCONSTRUES THE PLAIN LANGUAGE AND INTENT OF THE CONDITION CONTAINED WITHIN THE 2004 APPROVALS GRANTED TO CAESARS. ARMC also misstates the plain language of the condition contained within the 2004 approvals granted to Caesars for the Transportation Center. As stated in our initial brief, the 2004 Resolution for the Caesars Transportation Center incorporates and references Preliminary Comment No. 10 of the February 23, 2004 Atlantic City Division of Planning Memorandum (the “Comment”) at Page 7, Paragraph I(A)(3) in the following language: “Applicant [Caesars] will provide revised streetscape plans and post appropriate bonds or letters of credit in order to comply with comments 8-10” (emphasis added). See Exhibit A-8. As argued at length in Point I of our initial brief, this condition of the 2004 Resolution clearly and unequivocally required Caesars only to amend its streetscape plans to delete “references to office space” and to post the appropriate performance guarantees for the Transportation Center project. As Mr. Crane testified, Caesars complied with this condition as it otherwise could not have received Final Plan Certification from the Atlantic City Planning Division and ultimately a construction permit for the Transportation Center project. See Page 14 of SHE‟s initial brief; 5T89:7-14. Thus there are no mandatory outstanding conditions of approval from the 2004 Resolution that remain to be satisfied. ARMC entirely misconstrues the language of Comment No. 10 of the 2004 Division of Planning Memorandum. As we have also argued in our initial brief, the language of this Comment is merely precatory. Comment No. 10 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

Paul G. Weiss, Esquire-Chief Legal Officer Casino Reinvestment Development Authority July 8, 2014 Page 4 ___________________________________________________

Comment The applicant has agreed to remove the office use and will explore the feasibility of marketing of retail space with the Cordish Group” (emphasis added). This “condition” merely required Caesars to: 1) remove the office space reference on its streetscape plans and; 2) attempt to market the premises as retail space with Cordish. As noted above, it is undisputed that Caesars did in fact delete all references to office space on its plans. Furthermore, a plain reading of the Comment shows that it merely expresses a desire that Caesars “should” commit to providing retail at the space in question as well as “explore the feasibility” of marketing that space to Cordish, and did not in fact even require that Caesars lease the space to Cordish or any other third-party. The March 18, 2005 Agreement between Caesars and Cordish removes any doubt that Caesars did in fact comply with the Division of Planning‟s desires by in fact leasing the premises in question to Cordish to develop or sub-lease the premises as “retail space” for 15+ months beginning in March of 2005. Paragraph 7 on Page 4 of the March 18, 2005 Agreement between Caesars and Cordish, which was admitted into the hearing record as Exhibit A-23, states as follows: “Caesars hereby enters into a lease agreement with Cordish who shall develop and sub-lease approximately 5,000 square feet of retail space located on Pacific Avenue (between Michigan and Arkansas) in the first floor/street level of the Caesars Garage (“Caesars Retail Space”)”(emphasis added).1

1

ARMC‟s brief entirely ignores the emphasized language, the plain reading of which yields the inescapable conclusion that there was a present lease of the space to Cordish, which then in turn attempted to market it to retail users (ultimately without success).

Paul G. Weiss, Esquire-Chief Legal Officer Casino Reinvestment Development Authority July 8, 2014 Page 5 ___________________________________________________ Mr. Crane, who in fact authored and reviewed the February 23, 2004 Division of Planning Memorandum, testified that this agreement between Caesars and Cordish did indeed satisfy this condition. 5T79:18-5T80:2. Most importantly, the “condition” does not, as ARMC argues, operate as a “strict prohibition” against using the premises for medical offices or any other of the 124+ permitted uses in the RS-C zone other than retail or lobby space. See 163 Attachment 17 of the Ordinance. As Mr. Crane testified, the Comment was not intended to be a continuing prohibition against using the space especially since the Ordinance allows medical offices as a permitted principal use in the RS-C zone: “There was no covenant running with the land that required the applicant to develop the retail space in the interior. In effect no condition of approval exists today. It frankly has been satisfied. The removal of the word office referred, again, to a business office or some type of office that would be required for the operation of the casino other than personnel and human resource offices. So that would be – you know, general employment activity would be permitted, as well as any personnel services or medical offices that the application was proposing to locate in that space. The purpose of the retail and lobby requirement was to prevent casinos from turning their back on the community with uses that were internalized and this was from the very beginning of the casino development in Atlantic City […] The city, of course […] was attempting to bring that activity out onto the street, particularly along the main thoroughfares of Pacific Avenue and hopefully down to Atlantic Avenue, primarily focusing on Pacific Avenue.” 5T80:2-5T81:2 (emphasis added). ARMC also fails to mention that the CRDA‟s own planner, Christine Nazzaro-Cofone, agreed with Mr. Crane‟s testimony that any condition was satisfied. See June 13, 2014 Report of Ms. Cofone at Page 3. Ms. Cofone also stated in her Report: “As a licensed Professional Planner with decades of experience and most importantly the Planner who issued the review memorandum and

Paul G. Weiss, Esquire-Chief Legal Officer Casino Reinvestment Development Authority July 8, 2014 Page 6 ___________________________________________________ participated in the [Caesars] public hearing process, I found this testimony to be relevant and credible.” Cofone Report at Page 3 (emphasis added). ARMC also completely ignores the substantial testimony regarding changed circumstances offered by both Mr. Rahenkamp and Mr. Crane in support of SHE‟s request for the “c(2)” variance from Sec. 163-74E and from the alleged “condition” detailed in Point II above. See Pages 22-24 of SHE‟s initial brief. Also, despite his direct testimony that there have been no changed circumstances in Atlantic City since 2004 that would warrant the lifting of any outstanding condition relative to the Property, ARMC‟s planner Mr. Dixon conceded that gaming revenues in Atlantic City have dropped “precipitously” since 2004. 4T47:21-4T48:1. Mr. Dixon also conceded that gaming competition from Pennsylvania has increased dramatically and that Pennsylvania has higher gross gaming revenue today than Atlantic City. 4T48:13-24. Mr. Dixon testified that he was “certainly aware of Atlantic City‟s situation” and understood “the economic circumstances that affected Atlantic City at large” since the “economic meltdown in 2008”. 4T60:4-19. Mr. Dixon further acknowledged that the CRDA‟s master plan for the Tourism District talks affirmatively about the considerable economic decline of Pacific Avenue. 4T81:19-25. Also, despite his assertion that SHE‟s premises was suitable for retail, Mr. Dixon could not point to one example of a retail use located on Pacific Avenue in the neighborhood of SHE‟s office. 4T73:19. Mr. Dixon further conceded that during his career he has never done any market study or location study for any retailers that would support his opinion that a retail use is “suitable” for the space currently occupied by SHE. 4T74:20-4T75:15.

Paul G. Weiss, Esquire-Chief Legal Officer Casino Reinvestment Development Authority July 8, 2014 Page 7 ___________________________________________________ POINT III: SHE HAS PRESENTED MORE THAN ADEQUATE PROOFS TO MEET THE STANDARD FOR THE GRANT OF A C(2) VARIANCE FROM SEC. 163-74E Point III of ARMC‟s brief argues that SHE has failed to meet the positive and negative criteria for the grant of a “c(2)” variance from Sec. 163-74E. However, ARMC‟s brief conspicuously fails to mention that the proofs for the “c(2)” variance relief from Sec. 163-74E requested by SHE are subsumed as a matter of law in the proofs presented by SHE in support of its request for a use variance under N.J.S.A. 40:55D-70(d)(1). Price v. Himeji, LLC, 214 N.J. 263 at 301 (2013) (citing Puleio v. N. Brunswick Twp. Bd. of Adjustment, 375 N.J. Super. 613, 621 (App. Div.) certif. denied 184 N.J. 212 (2005). In the very recent, landmark case of Price, the Supreme Court held: “As noted by the Zoning Board, the Appellate Division has observed that „[a] Zoning Board, in considering a „use‟ variance, must then consider the overall site design[,]‟ with the result that, „the „c‟ variances are subsumed in the „d‟ variance.‟ Puleio, supra, 375 N.J .Super. at 621. Although the Board referred to the (c)(2) variances as being subsumed in the consideration of the (d) variances, the record of the Board's review of the building's overall design amply supports its decision. More to the point, the record supports and the resolution demonstrates that the requested (c)(2) variances both advance the purposes of the MLUL and create benefits that outweigh any detriment caused by deviating from the zoning ordinance.” Price, supra, 214 N.J. at 301 (2013) As detailed in Point III-B of SHE‟s initial brief, Mr. Rahenkamp testified at length as to how SHE‟s use advances both the positive and negative criteria for the grant of a use variance, should it be found by the CRDA that SHE‟s use is a not a permitted “medical office”. See SHE‟s initial brief at Pages 52-59. Mr. Rahenkamp also expressly referenced and adopted his testimony regarding the appropriateness of a use variance for SHE‟s use to support the grant of a “c(2)” variance. 2T177:202T178:14.

Paul G. Weiss, Esquire-Chief Legal Officer Casino Reinvestment Development Authority July 8, 2014 Page 8 ___________________________________________________ Additionally, all of the members of the public who spoke during the hearings on this application also provided testimony in support of the positive and negative criteria with regard to SHE‟s use. See SHE‟s initial brief at Pages 59-61. In contrast, there was absolutely no countervailing evidence or testimony produced by ARMC on this point other than Mr. Dixon‟s net opinion that SHE‟s office would “create a demographic that is not conducive to the thriving or the [...] precipitation of retail development or entertainment uses in this area specifically because of the type of use that it is.” 4T119:11-17. Certainly, therefore, SHE has produced adequate proofs in support of its use variance request to satisfy the indisputably lesser standard of proof applicable to a “c(2)” variance from this urban design standard. POINT IV: ARMC’S RELIANCE ON THE CRDA’S 2012 “MASTER PLAN” IS MISPLACED SINCE THE ATLANTIC CITY MASTER PLAN AND LAND DEVELOPMENT ORDINANCE INDISPUTABLY GOVERN THIS APPLICATION. Throughout its brief, ARMC cites from the February 1, 2012 “Master Plan” published by the CRDA for the Atlantic City Tourism District to support its argument that SHE‟s office is somehow incompatible with the zoning policies and objectives for Pacific Avenue. However, the governing documents for this application are indisputably the Atlantic City Land Development Ordinance and the Atlantic City Master Plan since the CRDA has not yet promulgated its own land use regulations for the Tourism District and the CRDA‟s 2012 “Master Plan” falls far short of the required elements for a master plan under the Municipal Land Use Law (“MLUL”). The Tourism District legislation (N.J.S.A. 5:12-218 et seq.) created the Atlantic City Tourism District and granted the CRDA jurisdiction within the district to “impose land use regulations, implement development and design guidelines [etc.]” N.J.S.A. 5:12-219(b). The CRDA has

Paul G. Weiss, Esquire-Chief Legal Officer Casino Reinvestment Development Authority July 8, 2014 Page 9 ___________________________________________________ exclusive jurisdiction to “review and [approve] or [deny] site plans and development proposals for development upon and improvements to land within the tourism district”. N.J.S.A. 5:12-220(b). The Tourism District legislation also directed CRDA to adopt a master plan for the Tourism District N.J.S.A. 5:12-219(e), which is defined as a “comprehensive master plan” for the redevelopment of the Tourism District. N.J.S.A. 5:12-218. Importantly, until such time that the CRDA adopts “development and design guidelines and land use regulations” for the Tourism District, “the master plan, zoning and land use ordinances and regulations, and the zoning maps adopted by the [C]ity […] shall remain in full force and effect within the tourism district.” N.J.S.A. 5:12-220(a). The 2012 “Master Plan” document adopted by the CRDA indisputably does not meet the requirements for a master plan under the MLUL. A master plan under the Municipal Land Use Law must contain, at the least, a land use plan element containing the requirements detailed at N.J.S.A. 40:55D-28(2)(a) through (d). A master plan also typically contains one or more of the discretionary elements outlined at N.J.S.A. 40:55D-28(3) through (16), including a housing plan element, a traffic circulation plan, a recreation plan, a utility service plan, and a community facilities plan, among others. ARMC‟s own planner Mr. Dixon conceded that the CRDA has not yet adopted a true master plan consistent with the Tourism District legislation. 4T37:3. He also conceded that such a master plan would have to be consistent with the MLUL‟s requirements. 4737:16-19. He further agreed that the CRDA has not yet adopted neither its own development and design guidelines nor has it adopted land use regulations for the Tourism District, and therefore the Atlantic City master plan and land use regulations (as contained within the Ordinance) govern this application. 4T36:23; 4T38:13-14. The Atlantic City Ordinance unequivocally permits “medical offices” in the RS-C zone per 163 Attachment 17 of the Ordinance (entitled, “Schedule III; Schedule of Permitted and Conditional

Paul G. Weiss, Esquire-Chief Legal Officer Casino Reinvestment Development Authority July 8, 2014 Page 10 ___________________________________________________ Uses; Medical and Related Uses”). The City‟s 2008 Master Plan does not, at any point, recommend that medical offices be removed as a permitted use in the RS-C zone. Furthermore, the deletion of “medical clinic” and hospitals as permitted uses in the zone was likely an error or oversight as testified to by Mr. Rahenkamp based on: 1) the lack of any expressed intent or policy within the 2008 Master Plan for removing medical clinics and hospitals as permitted uses; and 2) his conversations with Mr. Crane, who was the Atlantic City Planning Director at the time the 2008 Master Plan was adopted. 2T136:1-24; 2T158:14-2T159:19. Therefore, despite ARMC‟s attempts otherwise, SHE‟s office is certainly not incompatible with the City‟s Ordinance and Master Plan, as those documents clearly govern this application and not the 2012 CRDA “Master Plan”. All references in the opposition brief as to the CRDA Master Plan being the guiding legal document must be rejected as a matter of law. POINT V: ARMC’S INTERPRETATION OF THE ORDINANCE DEFINITION FOR “MEDICAL CLINIC” TO ENCOMPASS SHE’S OFFICE IS ABSURD AND IRRATIONAL. As discussed in Point IV of their brief, ARMC attempts to characterize SHE‟s office as “medical clinic”, which is not permitted in the RS-C zone instead of a “medical office” which is permitted in the zone. The Ordinance defines a “clinic” as: “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” (emphasis added). ARMC attempts to parse the words of this definition to arrive at a strained interpretation of what constitutes a “medical clinic” to include any office where two or more physicians, or a doctor and a nurse practitioner, practice together. As Mr. Rahenkamp testified, if the City‟s definition of “clinic” was read to mean any office where two or more doctors practiced in the same discipline, then

Paul G. Weiss, Esquire-Chief Legal Officer Casino Reinvestment Development Authority July 8, 2014 Page 11 ___________________________________________________ such a definition would lead to an irrational result, because it “completely eliminates the idea of medical office as a regulatory concept. Everything becomes a clinic if it simply takes two doctors to make it so.” 2T74:16-19. Elaborating on this explanation, Mr. Rahenkamp testified: “If this is a clinic, what isn‟t? If you try and parse what the difference is in this practice and an orthopedist‟s practice or an internist‟s practice, any of the technology-heavy practices, how do you differentiate them from a zoning perspective? What makes them different from one another? And there isn‟t one. So, if this is a clinic, then everything is a clinic. You‟ve, essentially, eliminated medical office as a relevant criteria.” 2T75:13-24; SHE Initial Brief at Page 40. Ms. Cofone also agreed with Mr. Rahenkamp‟s testimony, stating in her Report: “5) The Applicant‟s Planner [Mr. Rahenkamp] 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 […] 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 so read to include virtually all medical 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 […] 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 there were admitted – such a use does not, under common sense vernacular, automatically become a clinic.” Cofone Report at Pages 5 & 6 (emphasis in original). ARMC also completely misstates the facts regarding SHE‟s operations at its office. At Page 49 of its brief, ARMC asserts that “at a minimum” during any one shift, the office will have an emergency medicine physician, medical technicians, CT technicians, a radiologist, and lab technicians practicing together within the facility. This is factually wrong. As Dr. Dodaro testified,

Paul G. Weiss, Esquire-Chief Legal Officer Casino Reinvestment Development Authority July 8, 2014 Page 12 ___________________________________________________ and as detailed in SHE‟s initial brief, SHE‟s office is staffed by a single, Board-certified emergency medicine physician at all times with the assistance of an advanced nurse practitioner. 1T29:231T30:1; 1T30:23-1T31:8. The single physician on staff does not work with any other doctors simultaneously at the office. 1T36:19. No other professionals other than emergency medicine physicians practice at SHE‟s office such as dentists, physical therapists, social workers or psychologists. 1T49:21-1T50:14. ARMC‟s planner testified that SHE‟s office is a clinic based primarily on a comment found, not in the Ordinance, but in a 2004 treatise entitled: “The Latest Illustrative Book of Development Definitions” authored by Harvey Moskowitz and Carl Lindbloom. In that book, the definition of an “ambulatory care facility” merely refers the reader to the word “clinic” without further explanation. 3T95:15. However, Mr. Rahenkamp performed a studied analysis of the Moskowitz treatise and provided historical context for that treatise that was not provided by ARMC‟s planner. Mr. Rahenkamp analyzed the iterations of the Moskowitz treatise‟s definition of “clinic” from the first version published in 1981, to the second version published in 1993 and the latest version published in 2004. Mr. Rahenkamp summarized his analysis of those volumes as follows: “The comment that Mr. Dixon is relying upon was first written in 1993 and unchanged until 2004. Whatever we may think about what we might have known in 2004, there‟s clearly no way a practitioner in 1993 could have understood the nature of the urgent care use that was going to emerge in much more recent times than that. So there‟s certainly no effort in a writing in 1993 to have made any kind of fine distinction that would have been understood by or understood what an urgent care facility was and how it fit into whatever the nomenclature was being recommended several decades ago […] the word usage in Moskowitz and Lindbloom is never said to be transitory. It says it‟s reflecting this change in tastes and language that we should be referring to clinics as ambulatory care facilities. But it certainly doesn‟t say that all ambulatory care facilities are what we used to think of as clinics. We‟re still

Paul G. Weiss, Esquire-Chief Legal Officer Casino Reinvestment Development Authority July 8, 2014 Page 13 ___________________________________________________ dealing with a broad tent category […] It doesn‟t make everything ambulatory care simply because of that recommendation.” 5T173:1-5T174:5. Furthermore, as detailed in SHE‟s initial brief, Mr. French testified that the mere classification of SHE‟s office as an “ambulatory care facility” on its license from the Department of Health does not make it anything more than “a health care office that holds a license from the [DOH] and does not provide inpatient care at its base level. You ambulate in, walk in, get driven in, you‟re out the same day.” TT71:5-9; SHE initial brief at Pages 32-33. Mr. French also testified that the SHE office was a medical office that provided “urgent care”, most of which is “actually not licensed by the [DOH], because it‟s a physician group that is providing urgent care, extended hours, open scheduling. You don‟t need an appointment. Some diagnostic x-ray work and they don‟t have any kind of diagnostic equipment that is required to have licensure.” 1T72:15-21. Mr. French also acknowledge that such “urgent care” medical offices are becoming increasingly common in New Jersey and the “vast majority” of them are physician practices, i.e. doctors‟ offices. 1T73:25-1T74:2. Mr. Rahenkamp agreed that the fact that the SHE office obtained an “ambulatory care facility” license from the DOH has no bearing upon his analysis of SHE‟s use from a professional planning perspective because the DOH licensing scheme merely concerns the technology that is used in the office, as Mr. French also testified. 2T63:18. Mr. Rahenkamp further testified that the fact that the terms “ambulatory care office” or “ambulatory care medical office” are not listed as principal permitted uses in the City‟s Ordinance do not make SHE‟s use anything other than a medical office because the activities actually taking place at the Property are consistent with the activities that would typically take place within a medical office. 2T68:13-23; SHE initial brief at Page 36.

Paul G. Weiss, Esquire-Chief Legal Officer Casino Reinvestment Development Authority July 8, 2014 Page 14 ___________________________________________________ Mr. Rahenkamp also testified that, like many uses, the activities that take place in a medical office have evolved over the past 30 years. When a zoning ordinance does not take into account the evolution of consumer uses, “[w]e must adopt an interpretation „consonant with the probable intent of the draftsman “had he anticipated the situation at hand.” DePetro v. Twp. of Wayne Planning Bd., 367 N.J. Super. 161, 174 (App. Div. 2004) (internal citations omitted). Mr. Rahenkamp testified that medical offices today are more diversified and specialized in the medical care that they offer. 2T35:18-2T36:1. More doctors practice together in one office. 2T36:2-19. Mr. Rahenkamp further testified that, much like a lawyers‟ office, the number of doctors in one office does not make the use anything other than a professional office from a planning and zoning perspective. 2T40:15-2T41:2. Doctors also perform minor surgical procedures in their offices today which in the past would have been done in a hospital. 2T36:22-2T37:17. Tools and equipment utilized by doctors in their offices have also evolved, becoming more technologically advanced such as the CT scan used in the SHE office. 2T37:18-2T38:4. Mr. Rahenkamp further testified: “I would suggest to you, that today‟s doctor‟s office looks somewhat different than the doctor‟s office of 30 years ago. It‟s still a doctor‟s office. And each one of them doesn‟t look the same. They‟re different. What an internist‟s office looks like in terms of the number of examining rooms, the kind of technology that‟s in the space, the kinds of treatment he would offer are different than what an orthopedist would offer or what, in my view, the application or the use that‟s here today [SHE‟s application] is simply what an emergency medicine specialist‟s office looks like. This is the configuration that that particular specialty has within the confines of its office.” 2T38:24-2T39:14. SHE initial brief at Pages 34-35. For all of these reasons, as well as the reasons set forth in SHE‟s initial brief, the CRDA should reject ARMC‟s absurd interpretation of the Ordinance definition of a “clinic” to include SHE‟s medical office.

Paul G. Weiss, Esquire-Chief Legal Officer Casino Reinvestment Development Authority July 8, 2014 Page 15 ___________________________________________________ POINT VI: SHE HAS MET THE CRITERIA FOR THE GRANT OF A USE VARIANCE. Lastly, in Point V of its brief, ARMC argues that SHE has not met the criteria for the grant of a use variance pursuant to N.J.S.A. 40:55D-70(d)(1) should SHE‟s use not be found to be a permitted medical office. With regard to SHE‟s testimony that its facility is an inherently beneficial use, ARMC does not rebut the literature admitted into the hearing record and testified to by Mr. French that discusses the positive benefits of the proliferation of urgent care & ambulatory care facilities, particularly from the Rutgers Center for State Health Policy, the National Institute of Health, and the Kaiser Foundation, a large reputable foundation for health care policy research. 1T75:6-15. See Exhibits A-16, A-17 and A-18; SHE initial brief at Pages 49-50. Mr. French and Mr. Rahenkamp both relied upon these studies to opine that SHE‟s facility undoubtedly promotes the general welfare in accordance with Purpose A of the MLUL. See N.J.S.A. 40:55D-2(a); SHE initial brief at Pages 50-51. ARMC‟s likewise completely ignores the testimony of Dr. Dodaro and Mr. French regarding the wide-range of medical services provided by urgent care facilities such as SHE‟s in arriving at its conclusion that SHE‟s use is not inherently beneficial. See Page 49 of SHE‟s initial brief. Regarding the “particular suitability” requirement for the grant of a use variance, ARMC fails to mention the seminal, and most recent New Jersey Supreme Court case on the subject, Price v. Himeji, LLC. The “particular suitability” requirement is not to be equated with “uniquely suited” nor does it need to be shown that be no other alternative site for the use. Price, supra, 214 N.J. at 292. Rather, the requirement is “site-specific” and means that “the general welfare is served because the use is peculiarly fitted to the particular location for which the variance is sought.” Id. at 287-88. Detailed factual findings that distinguish the property from surrounding sites and demonstrate a need

Paul G. Weiss, Esquire-Chief Legal Officer Casino Reinvestment Development Authority July 8, 2014 Page 16 ___________________________________________________ for the proposed use may help to establish that the property is “particularly suitable” for the proposed use. Ibid. Mr. Rahenkamp testified at length as to how SHE‟s use satisfies this requirement as detailed on Pages 58-59 of SHE‟s initial brief. Specifically, Mr. Rahenkamp testified: “I think what is critical about this particular application for an urgent care facility is its location. We are in close proximity to the casinos themselves or several of the casinos themselves. This is a perfect facility for dealing with the emergent medical needs of a large population of workers near their workplaces and also, guests coming to those facilities that are visitors to our area. They are outside the reach, if you will, of their home medical service providers, and having an urgent care facility meets the needs of that population particularly.” 2T139:11-23. Furthermore, Mr. Rahenkamp went on to testify as to why the Property is particularly suitable for SHE‟s use; specifically its proximity to the tourist population that would be most in need of the urgent care services offered by SHE, the dedicated parking in the Caesar‟s garage directly behind the facility; and its accessibility from public transportation such as the NJ Transit bus system and the Atlantic City Jitney. 2T150:3-20. For these reasons and for the reasons detailed at Point III of SHE‟s initial brief, SHE has clearly met the criteria for the grant of a use variance should it be found that its use is not a permitted medical office. Thank you very much for your attention to this matter. Very truly yours, NEHMAD PERILLO & DAVIS, P.C. By: ________________________________ STEPHEN R. NEHMAD [email protected] SRN/mp Enclosure c: William F. Harrison, Esquire (Via Email: [email protected])

Paul G. Weiss, Esquire-Chief Legal Officer Casino Reinvestment Development Authority July 8, 2014 Page 17 ___________________________________________________ bcc:

Ronald Johnson, CEO (Via E-mail: [email protected]) Jonathan J. Cuviello, MPH, MBA (Via E-mail: [email protected]) Fran Kaplan (Via E-mail: [email protected] ) Grace Paulhus, Esquire (Via E-mail: [email protected]) David Hughes (Via E-mail: [email protected]) Creigh Rahenkamp, PP, AICP (Via E-mail: [email protected]) Terence French (Via E-Mail: [email protected]) William D. Crane, PP, AICP (Via E-mail: [email protected]) Nicholas Dodaro, M.D. (Via E-mail: [email protected]) JoAnne Sparagna (Via E-mail: [email protected]) Gary Herschman, Esquire (Via E-mail: [email protected]) Diana Fratto, Esquire (Via E-mail: [email protected]) Joseph R. Dougherty, Esquire (Via E-mail: [email protected]) John Donnelly, Esquire (Via E-mail: [email protected]) Michael Peacock, Esquire (Via Email)