TOVIA ROSENBERG SEEKS TO REVIVE PROPOSAL FOR 5-STORY HOTEL ON PINE & NEW HAMPSHIRE

RD Lakewood, LLC, which is owned by Lakewood developer Tovia (Thomas) Rosenberg is once again seeking Site Plan approval from the Township's Planning Board to construct a 5-story Courtyard Marriott hotel on Pine Street and New Hampshire Avenue, FAA News has learned.

This is Tovia's third round at the Planning Board after his first two approvals were tossed out in court. The major difference now is that the new plans purport to eliminate the previously proposed banquet hall, which was the basis for the legal challenges to the project.

Back in 2014, RD Lakewood filed a site plan application for approval to develop a 5-story, 22,500 square foot hotel, a 3,153 square foot bank and 153 parking spaces.

At the public hearing, architectural plans were shown that included a bar, restaurant, and banquet facilities. These proposed uses were not listed in the applicant's legal notice, which only stated that stated that RD Lakewood applied to the Board "to construct a hotel as well as a bank."

Despite this issue, the Planning Board unanimously approved RD Lakewood's application.

In July 2015, Lakewood Realty Associates (LRA), which owned the Hilton Garden Inn in Lakewood and the Ramada Inn in Toms River, filed a lawsuit in New Jersey Superior Court in Ocean County seeking reversal of the Board's approval. LRA argued, among other things, that RD Lakewood's public notice was deficient because the notice stated that the site was for a "hotel and a bank," and did not mention the proposed bar, restaurant, and banquet facilities.

The Superior Court upheld the Board's approval and dismissed the lawsuit, determining, among other things, that the notice stating a hotel was proposed was sufficient given that the architectural plans on file with the planning board clearly indicated the proposed hotel would also include a restaurant with a bar, banquet facilities and meeting rooms, which the judge noted "are common amenities in a hotel of this size associated with a national brand."

In 2019, the Appellate Division reversed the trial court's decision and tossed out the Planning Board's approval.

The Appellate Division held that RD Lakewood's public notice was materially deficient because it did not adequately describe "the material characteristics of the development's proposed uses."

In tossing the lower court's decision, the Appellate Division noted that despite RD's assertion that restaurants, a bar, banquet facilities and meeting rooms, "are common amenities in a hotel of this size associated with a national brand," the issue is that on the local level, Lakewood Township's ordinance includes a definition of a hotel and that definition only said that "motels typically do not include lobbies and hotels do typically include lobbies," without specifying that hotels typically include restaurants, a bar, banquet facilities and meeting rooms.

The simple way to move forward would have been for RD to submit a new application to the Planning Board with proper notice listing all of the proposed uses. However, this would have been problematic as then, objectors could have argued that each use requires its own parking - which RD saw no reason to provide.

Never ones to sit back after someone suffers a loss in court and does not want to submit a new application with sufficient parking, in November 2019 Lakewood's Township Committee came to the rescue with an ordinance amending their definition of a hotel to expressly say that hotels "may include, but not be limited to, a lobby, full-service restaurant, cocktail lounges, meeting rooms, banquet facilities, and convention facilities..."

By amending this ordinance, the Committee hoped to fix RD's double problem, as their new notice would not need to disclose all of these proposed uses, - as they were now expressly part of a hotel, - and parking did not need to be provided for each of these uses, as they would be considered accessory uses which the ordinance deemed permitted with no additional parking requirement.

Subsequently, in August 2020, RD Lakewood sent legal notice to the neighbors notifying them about an "amended application for a hotel." The notice did not include any proposed banquet hall.

In September 2020 the Planning Board approved the amended application for a 5-story hotel with 138 rooms, a pool and sauna, gym, 3 meeting rooms, a bistro and 6,700 sq feet dining area, and 193 parking spaces.

On November 30, 2020, represented by Newark Attorney Mark E. Duckstein, Esq. of Sills Cummis and Gross P.C., Lakewood Realty Associates filed yet another Complaint in Lieu of Prerogative Writs seeking to overturn the Planning Board's second approval.

The Complaint challenged the fact that the legal notice did not mention the proposed banquet hall.

Judge Marlene Ford held a trial on the Complaint in December 2021, and released a written decision dismissing the entire Complaint.

Notably, Judge Ford conceded that the legal notice did not mention a banquet hall, however, being that the Planning Board accepted Engineer Brian Flannery's expert testimony that the dining area would be limited to meetings and convention uses and that it would not be used for weddings, "the Court finds no merit to these arguments."

However, yet again the Appellate Division reversed this ruling, finding that "the developer's public notice of its second land use application was materially defective because it failed to disclose that the hotel would contain a banquet facility with the capacity to accommodate up to 833 people."

The public notice need not be "exhaustive," however, it must be sufficient to enable members of the public to make "an informed determination" about whether to attend and participate in the applicant's land use hearing.

"Our first opinion in this case held that the elements of a restaurant and a banquet facility were sufficiently important to be required within RD Lakewood's public notice. Our determination in that regard remains unchanged. RD Lakewood persuaded the Planning Board and the trial court that the banquet facility did not have to be mentioned in the notice because, in the interim between the 2014 hearing on the first application and the 2020 hearings on the second application, the Township's ordinance was revised in 2019 to redefine "hotel" to include "banquet facilities." The trial court reasoned this definitional change no longer required RD Lakewood to obtain a use variance to enable the planned hotel to include a banquet facility.

"However, that change does not eliminate the applicant's statutory obligation -- in connection with the land use application as a whole -- to convey to the public the impactful activities that will be authorized on the site.

"We recognize the Planning Board's resolution disallows the hotel to be used as a "wedding hall." But that does not prevent other very large gatherings from being held at the banquet facility, such as fund-raising dinners, political events, galas, retirement dinners and anniversary parties, and so on. The banquet facility was a material aspect of the application that needed to be mentioned in the notice, regardless of the change in the ordinance's definition of a hotel," the Appellate Division wrote.

In April 2021, while this appeal was pending, the Township Committee adopted a new Ordinance requiring 1 parking space per 1 person of the capacity of the banquet hall for hotels with banquet halls in the Cedarbridge Corporate Campus. Thanks to this ordinance, a new Site Plan approval from the Planning Board for this hotel project would be required to provide adequate parking for the banquet hall, which the previous application was not required to include.

The Township Committee likely enacted this new Ordinance only after this hotel got its 2020 approval simply to ensure that there is no competition hotel and banquet hall built in this area. However, now that the court reversed the site plan approval, a new application would require this hotel to provide adequate parking for the banquet hall. 

What to do about this mess?

Ah....

RD Lakewood has submitted yet a new application to the Planning Board. However, this new application purports to NOT include a banquet hall. Instead, only meeting rooms, a kitchen, a lounge, bar area, dining area, pool, game room, racquetball court, bowling area, play area for children and an exercise room are depicted on the architectural plans. 

The Site Plan application seeks approval to construct a new 5 story (plus finished basement) hotel which will contain 138 rooms.

193 off-street parking spaces are proposed, 6 of which would be ADA-compliant.

Access to the proposed site will be provided by a new driveway on Pine Street. The driveway would have a single entrance lane with a 2 lane exit for right and left turns. No access will be offered from New Hampshire Avenue.

New Hampshire Avenue is proposed to be widened with a new southbound right turn lane onto Pine Street. 

New curbing and sidewalk would be installed with the pavement widening. The existing sidewalks along Pine Street in front of the proposed hotel site is to be replaced. The application seeks a design waiver from providing curb across the frontage of the stormwater management basin.

The application also seeks variances for parking setbacks, as well as design waivers for the proposed driveway width, and from not proposing buffers along the side and rear property lines.

The hotel will seek a liquor license so that alcohol may be served on the premises.

The application has been scheduled for a public hearing before the Lakewood Township Planing Board this coming Tuesday, April 9, 2024 at the Lakewood Township Municipal Building at 6:00 pm.