Superior Court Hearing Centers on Overlook Helipad as ‘Beneficial Use,’ Whether Board Acted Capriciously, Effect on Neighborhood
Tuesday, July 17, 2012 • 10:32pm
SUMMIT, NJ - Would a helipad at Overlook Hospital add to the medical facility’s “beneficial use” to the community? Did the Summit Board of Adjustment act “arbitrarily and capriciously” in denying the hospital’s application for a variance to locate a helipad on its roof? Would location of a helipad at Overlook be detrimental to the surrounding community?
These are some of the issues Union County Superior Court Judge Karen Cassidy will wrestle with as she decides on the appeal by Atlantic Health Systems, Overlook’s parent company, of last year’s ruling by the Summit zoning board against the hospital’s application for a helipad.
The board turned down the hospital’s bid after nearly two years of hearings.
Cassidy heard arguments on the appeal on Tuesday and is expected to rule on the matter next month. Representatives of the hospital, the zoning board and Citizens Against the Helipad, a resident group opposed to the application, appeared before the judge.
Overlook attorney Bart Sheehan led off by saying because the proposed helipad would be located in the middle of the hospital’s property it would more likely affect doctors, patients and employees of the medical center than residents of the surrounding neighborhood.
Sheehan added the helipad would be within the “core use of the hospital,” which has “an inherently beneficial use” to the community.
The board’s decision can be set aside, he said, if the zoning body acted “arbitrarily” and “capriciously” in turning the application down.
Since the helipad would be part of the hospital’s “core use,” he argued, the zoning board should not have required a use variance for the structure and should not have overruled the helipad as an accessory use.
The hospital attorney also argued the zoners’ reliance on testimony from residents who live near the helipad at Morristown Memorial Hospital “unnecessary inflamed the passions” of Overlook’s neighbors.
He also said the fact that Morristown Memorial is a regional trauma center and a cardiac care center means its use of helicopters is far more intense than the use at Overlook, where the Summit hospital’s neuroscience center would use it to transport victims of stroke in need of immediate care.
Board of Adjustment Attorney Dennis Galvin replied the Summit board had not only met, but exceeded, the standards required to deal with findings of fact in the case.
Galvin said “arbitrary and capricious” were “terms of art” used when it is felt a board fails to meet the standards of law and the Summit board had also exceeded those standards.
Overlook’s representatives brought the Summit zoners to Morristown to examine its facilities, he said, adding the board of adjustment realized there were differences in use between the two facilities but also realized there could be an expansion of the Overlook use in the future.
Cassidy said it was possible the Summit board was concerned that Morristown’s helipad had “morphed” into more than its original use and the same could happen at Overlook and that probably was the reason for bringing in the history of the Morristown facility and testimony from the Morristown hospital’s neighbors.
“In a number of hearings before the Summit Board of Adjustments applicants have testified their proposal would involve an expansion of an inherently beneficial use,” Galvin said, “and they lied.”
Sheehan replied witnesses testifying in those hearings were under oath and he did not believe they lied.
Galvin then apologized for any characterization that appeared to reflect on witness testimony elicited by Sheehan.
He added he believed it always was to the board’s benefit to allow as much evidence as possible and he had, in fact, over the years, regretted advising boards to exclude some evidence but had done so to be fair to all parties.
Michael Kates, attorney for the objectors, added the Summit board had, in fact, allowed testimony about the fact that the Overlook helicopters would be smaller models than those used at Morristown.
Gary Hall, another attorney for Atlantic Health Systems, said the board, in its resolution of denial, seemed to ignore testimony on the helipad’s accessory use as part of the core use and did not put enough weight on the testimony of the helipad’s use as part of the stroke center as helping expand the hospital’s beneficial use.
Kates noted the board was not concerned so much that the helicopters using the Overlook helipad would be travelling through the city but that they would be “transcending the zone” where Overlook is located. Therefore they would be “novel” and go beyond an “accessory use” for the Summit hospital.
Galvin added the zoning body considered the helipad a “dual principal use” rather than an “accessory use.”
He noted the proposed helipad was too large to be considered an “accessory use,” and, therefore, the board held it to a stricter standard within the framework of “inherently beneficial use.”
Hall replied the helipad was being proposed as part of the hospital’s “patient care regime,” adding if the helipad was within the hospital’s inherently beneficial use there was no reason the hospital should have to apply for a separate use variance for the helipad.
Kates doubted Overlook had proven the helipad was medically necessary and the hospital did have alternatives such as landing a helicopter at the Colgene property in Summit, the Connell office park in Berkeley Heights or at Morristown Memorial and transporting patients by ambulance to Overlook.
Sheehan, however, pointed to testimony at the Summit zoning board hearings from Dr. John Halpern, a neurological specialist for Atlantic Health Systems, who said Overlook is a “stronger partner” in the treatment of stroke patients than Morristown Memorial.
Halpern, according to Sheehan, said over the last 15 years Overlook has developed very advanced technical systems for treating stroke.
The neurological specialist, according to Overlook’s attorney, called the “double transfer” of patients transported by ambulance to Overlook for stroke treatment on of the scariest times in the course of treatment.
In transport by helicopter, Sheehan said, the patient is transferred onto the helicopter and taken off on the same gurney, thus eliminated the need for double transfer.
He estimated the transport time by ambulance from Morristown to Overlook at up to an hour and that by helicopter at 15 minutes.
The zoning board, he said, treated the Morristown and Overlook treatments as about equal, not taking into account Overlook’s “preeminence” in stroke treatments.
Galvin, however, said the “mercy treatments” minister to about 69 people every three months, of which about six are transported by helicopter.
He also said expert testimony at the Summit hearings showed patients transported by helicopter do not show significantly better outcomes than those who are not transported.
The board, he said, had to weigh the benefits of helping four to six people against the detriment to the neighborhood surrounding Overlook.
Cassidy questioned whether the increased prestige that would come to the Overlook neuroscience center due to expansion once a helipad was instituted also came due to its ability to better serve its patients.
Galvin replied this was also a “business argument” and said the board questioned whether the reward was worth the risk involved.
He also pointed out that, unlike other stroke centers, Overlook was located in a very densely populated area with a helipad posing a greater risk to surrounding residents than such a facility in other areas.
There also was extensive argument between the representatives of the hospital, the zoning board and the objectors about whether the helicopters that would go to and from Overlook would be governed by Federal Aviation Administration or local noise standards.
In addition, Hall argued in determining the effect of the helipad on property values there should be a “balancing of interests” between the hospital and the residents.
He said the hospital would not be “spreading out,” by constructing a new building, but only was adding a use onto its roof.