LAKEWOOD PLANNING BOARD FORCES APPLICANT TO RETURN AFTER NEIGHBORS CALL FRAUD

Lakewood Township's Planning Board last week held a contentious hearing regarding a school and 15-unit Subdivision already under construction on Ridge Avenue near Brook Road.


The application under discussion involves a school and 15-unit Subdivision which the Board originally approved back in July 2019. Construction on the school, which fronts on Ridge Avenue, is nearly complete. The 15-unit Subdivision will front on a new cul-de-sac road off Ridge Avenue.


At that Planning Board hearing the applicant's professionals testified that there would be a maximum of 8 school buses serving the school; an off-road bus loading zone would accommodate 6 school buses and the bus drop-off and pick-up times would be staggered so there would never be more than 6 buses on-site at a time.

The applicant also testified to the Planning Board that there would be a Simcha Hall (banquet hall for private events) which would be for "smaller events, up to 225 guests".


The Board resolution does not state how many students were proposed, however, the applicant submitted a traffic study which said that there would be a maximum of 361 students.


The application subsequently received Ocean County Planning Board approval.


Following these approvals, a group of neighbors met with representatives of the builder and school to discuss neighborhood and community issues arising out of the proposed construction. At those meetings, the representatives of the builder and school informed the neighbors that the school is actually intended to grow to 700 to 800 students over the next 3 to 4 years, and 15 to 16 buses would be needed to transport all these students to school.


In light of this new information heard directly from the developers, the group of neighbors filed a lawsuit seeking to overturn the planning board's approval.


State law permits people to file suits seeking to overturn Board action in cases where the Board decision is arbitrary, capricious, or unreasonable - but only within 45 days of the Board publishes their memorialization of the approval.


This lawsuit was filed past the 45 day limit. However, the neighbors argued that the court should still vacate the Board approval on the premise that the applicant misrepresented the scope of their plans to the Board - in light of the fact that the developers only disclosed the true scope of the school's intended enrollment after the Board approval.


The neighbors also charged that the Board lacked jurisdiction to hear the application because banquet halls are not a permitted use in this zone and therefore the application required a use variance which only the Zoning Board of Adjustment could grant, and the planning board can not grant.


Additionally, the suit charged that the Board lacked jurisdiction to hear the application because the Simcha Hall was not advertised in the legal notice the applicant sent to adjoining property owners prior to the planning board meeting.


The case was brought before Ocean County Superior Court Judge Marlene Ford and she ultimately upheld the Board approval, saying simply that the suit was not filed within the required 45 day timeframe, and that the complaint regarding the number of students is "speculative". However, Judge Ford did stipulate that the Board approval is specifically limited to 361 students and the neighbors could seek declatory judgement if the school ever increases their student body without first returning to the Planning Board for a change in their approval.


The neighbors, in turn, have appealed to the New Jersey Apellate Division, arguing that the Superior Court ruling should be vacated, arguing that the 45 day limit should be lifted because 1) the public notice was inadequate as it did not mention the Simcha Hall, 2) the Planning Board lacked jurisdiction as the Simcha Hall is not a permitted use, 3) the number of students and buses was fraudulently misrepresented.


The school and its developer have responded with 4 counts against the appeal; 1) the public notice was sufficient as it did "settle the nature of the matters to be considered", 2) Simcha Halls are "not a non-permitted use", 3) The Trial Court is correct that the complaint regarding the number of students is "speculative", and 4) the neighbors failed to put forth an argument germaine to the Subdivision resolution of the planning board.


The school argues in their brief that "Plaintiff alleges that there was a misrepresentation as to the number of students ... and Simcha Hall... However, if Plaintiff performed due diligence it could have easily determined that the plans submitted to the Planning Board references 27 classrooms, and determined the maximum capacity under the building code." The school then concludes that the neighbors were aware of the Simcha Hall through the construction plans provided to the planning board, and through the testimony provided at the public hearing, as well as on the resolution.


The Apellate Division has scheduled oral arguments on the case next month.


In the meantime, the Ocean County Planning Board got wind of the fraudulent misrepresentations and they shlepped the applicant to return for a rehearing. At the rehearing, the developers submitted a new traffic study, admitting that the school building could fit over 700 students and that in fact, they anticipate having 15-16 school buses doing pick up and drop offs. The county also asked more in-depth questions regarding the proposed Simcha Hall (which they originally did not disclose to the county). As a condition of the approval, county officials restricted the Simcha Hall to being used only after-school hours.


Seeing that the county forced the application to return with updated plans and a more detailed presentation of the scope of the project, the Lakewood Township Planning Board also cajoled the developers to return now to the township for an additional review.


The Board agenda stated that the purpose of the meeting was to consider whether "the county approval is consistent with the township approval".


The hearing took quite a while as numerous neighbors as well as representatives of the school spoke in opposition to, and in support of, the application.


Some neighbors remarked that the new Simcha Hall was recently advertised in BP Weekly and the ads stated that the hall could fit "over 300 guests". (When the Simcha Hall was originally approved by the planning board, Traffic Expert Scott Kennel testified that the hall would fit only 225 guests.) Curiously, the number of guests was then omitted in future ads.


One neighbor added that she called the Simcha Hall office to reserve the hall and asked if she could reserve the room for 350 guests. The secretary told her that "until after the planning board meeting we are telling people that we can only fit 300, but after the planning board meeting we will be able to advertise for more"!


Amazingly, the applicant's attorney responded that that the 300 number was simply a "publishers typo"!


Ultimately, the Board did a deadlock 3-3 vote on the matter. Board Chairman Moshe Neiman attempted to suggest that, as a compromise, the Board vote to approve with a condition that the applicant increase parking and room for more school buses to load on-site and to loop around to another exit, however, the Board failed to muster enough support for this specific proposal.


Board Attorney John Jackson then stated that he will need to research to determine what happens now in the absence of a passing motion.


UPDATE: After subsequently researching the matter, the Board Attorney has interpreted the Board's split vote to mean that the status quo remains and the original resolution remains in force.

The case continues in the New Jersey Apellate Division.

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WATCH: Planning Board rehearing this application

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