BY MARINA VILLENEUVE
Alzheimer’s disease and dementia are such severe mental disabilities, requiring such extensive care, that state health authorities should be the ones to oversee group homes housing its victims.
That’s the thrust of a bill — shepherded by a North Jersey assemblywoman and awaiting the governor’s signature — that would not only increase oversight of such homes, but end a dilemma for municipal boards confronted with such development proposals.
It’s a dilemma now being faced in Upper Saddle River. There, a developer proposing such a home is contesting the borough’s very right to review its medical-services plans for the facility. It’s doing so by arguing with the borough’s interpretation of the state’s definition of head “injury,” currently the basis for determining what types of homes for persons with such disabilities are exempt from intensive review and approval by hometown boards.
It’s another example, said Deputy Speaker and Assemblywoman Valerie Vainieri Huttle, D-Englewood, that shows exactly why she initiated the legislation. The bill explicitly excludes Alzheimer’s and dementia from the law’s definition of head “injuries” and would put the state Health Department in charge of overseeing group homes for those categories of disabled.
State law defines a victim of a head injury as someone “who has sustained an injury, illness or traumatic changes” to the skull and brain resulting in physical or mental damage causing disability. In part as a safeguard against discrimination, it exempts such housing from extensive municipal reviews and approvals.
In Upper Saddle River, developer Blake Gardens LLC of Mahwah argues that Alzheimer’s disease and dementia fit that definition. So, it argues, it should be allowed to expand an existing single-family home into a group home for at most 15 people, with only the same review the borough Planning/Zoning Board would give plans for an ordinary home.
But borough Zoning Officer John Walsh has denied the application for a building permit, arguing the law doesn’t explicitly reference Alzheimer’s and dementia and that they are not head “injuries” by medical definition. As a result, he said, site plan review would have to include aspects of medical and emergency services.
Huttle said: “That is exactly why we have this piece of legislation: to make sure there is a differentiation between Alzheimer’s and dementia from head injuries, so developers don’t go and continue to have group homes without oversight.”
Huttle said head injuries are not necessarily “equivalent to an Alzheimer’s patient who needs that type of care that should be overseen by the Department of Health.”
Michael Kates, an attorney representing zoning and planning boards in Bergen County, said Blake Gardens’ legal argument may be the first of its kind in the state.
The state law doesn't specify who has oversight of small group homes for those with head injuries — an issue Huttle said she will look at in the future. Under the state Municipal Land Use Law, several types of residential uses don’t require site plan approval. They include group homes for up to 15 people with head “injuries.”
“The definition of head injury itself in [the law] may be broad enough to include the Alzheimer’s condition, even though it’s not a, quote, ‘head injury,’” Kates said.
Ed Purcell, attorney for the New Jersey League of Municipalities, said the issue also highlights the tension between “home rule” — local powers — and state and federal laws, which protect individuals with head injuries from discrimination in housing.
“The municipality has broad land-use authority, to the extent that state and federal law preempts it,” Purcell said.
Eric and Barbara Boe, the owners of Blake Gardens, have been involved in building other such homes in the state. Their company seeks to build on a 1.37-acre lot at 62 Sparrowbush Road and is appealing Walsh’s decision to the Planning/Zoning Board, which will hear the issue on Sept. 9.
Blake Gardens’ attorney, Steven Tripp, maintains that under borough zoning, the group home would only have to follow requirements applying to single-family homes. He wrote Walsh that, given his opposition, the borough would be violating state law and the Fair Housing Act.
But Walsh has written in return that given the absence of “Alzheimer’s Disease and other forms of dementia” within the state law’s definitions, the group home must provide plans for off-site disposal of medical waste and of access for emergency vehicles, among other requirements.
Blake Gardens’ appeal counters that such requirements are “site plan details for non-residential users” and don’t apply in its case. It also boldfaces the word “illness” in the state’s definition and argues that Walsh “conveniently ignores” the word and says that “there can be no question that Alzheimer’s disease and other forms of dementia constitute an ‘illness’” under the law.
The Mayo Clinic defines Alzheimer’s as a degenerative disease that can destroy memory and other important mental functions. It can cause brain damage leading to dementia, a group of brain disorders that severely affect memory, thinking and social abilities.
Both the Assembly and Senate passed versions of the bill this summer. Huttle began drafting the legislation after a December 2012 article in The Record, which chronicled incidents in which residents at a chain of group homes for Alzheimer’s and dementia, run by Memory Care Living, wandered away or were injured.
After more recent alleged violations by the chain, Huttle said, they bolstered her argument that such homes should be inspected by personnel trained in reading a medical file and evaluating care. “It’s more than just bricks and mortar that needs to be looked at here,” she said. “It’s a question of the safety and well-being, and the Department of Health is better-suited to evaluate that.”
Upper Saddle River Mayor Joanne Minichetti also has expressed concern over oversight in the development of group homes. In a letter to the editor published by The Record, she noted a June state court decision affirming that hospices don’t need site plan approval.
“But that particular decision was regarding a not-for-profit hospice. These Alzheimer homes are commercially run,” she said, referring to the Blake Gardens application. “This leaves the builder/operator able to construct such homes without input regarding fencing, fire precautions and other critical safety related matters.”