On July 26, 2007, Union Countiy's Judge Barisonek ruled in our favor in the case brought to challenge Board of Adjustment approval of the the expansion of the Abbott Manor Nursing home. The judge gave a 1 hour and 40 minute oral decision in which he thoroughly went over the issues brought out in the transcripts of the hearings. It was obvious that he read the transcripts cover to cover. He quoted numerous statements by the expert witnesses of both sides, citing page numbers, as well as quoting from both the 2002 and 2005 Board of Adjustment’s resolutions. The Board of Adjustment's 2002 denial of the nursing home expansion will be reinstated.
Excerpts of Bill Michelson’s Summary of Judge Barisonek’s Decision
In evaluating the impact which the project would have on the historic district, I think two things influenced the Judge greatly. One is that he examined the model which showed clearly how massive it would be, as compared with surrounding properties. The other is that the other intrusions into the district (notably the 1950s-style apartments across the street), including the old Abbott Manor addition, all pre-dated the creation of the district in 1982.
The Judge believes that the Board was so overwhelmed by the federal court settlement, and Rother's threat of further litigation, that it simply lost sight of all the proper criteria for deciding the case. He blamed part of this expressly on Rother's planner,
Turning then to the FHAA test under Lapid-Laurel, he found that the statute does not give the handicapped in nursing homes a right to live at a particular location, but to be able to live somewhere in town. Since
The parallel issue in state zoning law is called "inherently beneficial use", and the case everyone cites is Sica. He went our way on the most basic legal point I have advanced: that since we now have historic preservation laws, being in a historic district becomes one of the "negative criteria" for applications like this, and a very big one at that. In other words, for the first time, a