Daughters of Israel Sues West Orange Zoning Board, Seeking to Disqualify Three No Votes

A rendering of the proposed expansion at Daughters of Israel. Credit: KDA Architects.

The hearings on Daughters of Israel’s proposal to expand its senior-care facility lasted a marathon seven months, ending in the Zoning Board’s denial on May 19. But the fight isn’t over. The nursing home filed a lawsuit against the township’s board.

The legal brief claims that the three board members who voted against the campus expansion at the final hearing on May 19 — Brett Scott, Michael Barbee, and Jerome Eben, who together blocked the required five-vote supermajority — did so based on reasons that were “unsupported by the record or reflect improper considerations that do not warrant or justify denial.”

Daughters of Israel, which came to a then-bucolic West Orange in 1964, decided to alter its business model based on an in-house report that the nursing home could go out of business in a decade without changes to its nonprofit model. The organization — which currently serves about 150 patients, 75 percent of whom are Medicaid recipients, the brief claims — is seeking to shift its focus to market-rate assisted-living and independent-living residences.

The length of the proposed construction— six years — was one of the considerations that doomed the project, as members of the public worried about the stress on elderly and immunocompromised patients that would have to endure years of dust, noise, and traffic. Environmental issues and protests from neighbors about the scale of the new buildings factored in. Scott and Barbee also expressed concern that this for-profit model could result in patients being turned away.
 
“What happens if the resident in independent living runs out of money?” Scott asked.
 
“They may have to move someplace else,” said David Stafford, chief financial officer of Daughters of Israel. “Part of the assessment of residents coming in is a look at their financial condition.”
 
The document slings a number of accusations, including a claim that the objector’s planner, Barbara Allen Woolley-Dillon, had testified falsely under oath. It also requests that Eben’s vote be disqualified because, during a bathroom break, he missed two of his fellow board members “impassioned statements … in support of the Application.”
 
However, the most explosive charges were reserved for former town council candidate Scott, claiming that he voted “politically,” and had a bias against Daughters of Israel and the “elderly in general.” Scott told the Four Oranges that he denies the claims of bias and other accusations.
 
“DOI is not entitled to a variance,” Scott told the Four Oranges. “Judging an application on the facts does not preclude a zoning board member from stating other opinions. There was never any bias on my part nor, I believe, on the part of any member voting.”
 
This accusation of voting politically is ironic as Scott, since joining the board this year, has hung his cap on ridding the Zoning Board of politics, after his own participation was initially blocked. Mayor Susan McCartney, who took office in January, believed she could retain her appointment made as councilwoman — Peter Ricci — as well as have an additional two appointments reserved for mayors, effectively granting her three appointments. Later, she reversed her position, allowing Councilwoman Sue Scarpa to name Scott as her appointee.
 
Scott seems to envision himself as a reformer. At the May 19 hearing, Scott accused Neuer of occupying his position in defiance of the local ordinance. Neuer was reappointed by Councilwoman Tammy Williams as chairman of the Zoning Board for his sixth consecutive term, which Scott pointed out is in defiance of the local ordinance that limits appointments to one term.
 
“It is no one’s right to tell the elected officials of this town — selected by the voters in free and fair elections — this is a workaround,” said Scott, objecting to keeping “someone in a position that he is not duly allowed to be in by law.”
 
The recent tensions at the Zoning Board seem to reflect a similar power struggle happening at Town Hall. Since taking office, Mayor McCartney has dealt with a voting bloc — Councilwoman Susan Scarpa and Councilman Bill Rutherford with Councilwoman Asmeret Ghebremicael as swing vote — that has impeded many of her policy initiatives and foiled her ability to make certain appointments. McCartney accused the trio of acting as a “shadow government.”
 
Now, the appointments of the council’s voting bloc — Scarpa chose Scott, Rutherford chose Eben, and Ghebremicael chose Barbee — are the subject of the Daughters of Israel’s lawsuit, which accuses them of not rightfully occupying their seats.
 
Not all board members have taken kindly to Scott’s crusade. The discussion on May 19 of Neuer’s appointment and term limits escalated into what could best be described as a meltdown. Alice Weiss, who has served alongside Neuer for the last two decades, accused Scott of destroying the board’s civility.
 
“Since you’ve joined the board, this board has been absolutely ruined,” Weiss added. “We used to have harmony, we used to have friendly discourse, we didn’t have to agree on the same outcome — you have ruined this board.”
 
“I suggest you retire because I’m not leaving,” Scott said.

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