SCANDAL REVEALED: HOW TOWNSHIP OFFICIALS PAVED THE WAY FOR APPLICATION TO ADD ADDITIONAL 500 CARS ON JAMES & CROSS STREETS

As first reported here on FAA News (https://www.faanews.com/2022/07/500-cars-plus-2-schools-with-banquet.html), an application submitted to the Lakewood Township Planning Board would add an additional 500 cars to the Cross and James Street traffic.

Application SD 2511, filed under the name Yeshiva Chemdas Hatorah, (and fully owned by developer Sharon Dachs of Deerfield Holdings), seeks approval to build a brand new residential development at the 17.5 acre parcel on the northeast corner of Cross Street and James Street with 125 homes plus basement apartments. That is 250 families, and approximately 500 cars.

The application proposes a full movement driveway on James Street and a right turns only driveway on Cross Street.

The plans submitted show a 32 foot wide pavement for the public rights of way, 5 foot wide sidewalks, and 4 off-street parking spaces per unit which will be double stacked.

There is a 35,100 sq feet lot being reserved for a future shul. The actual Site Plan will come at a later date, which means we do not yet know how many parking spaces the shul will have, or if it will include accessories such as a Mikvah or a simcha hall.

There is also a 7,500 sq feet playground lot, which is oddly designed far from the shul. Many Lakewood developments actually thrive from the playground being close to the shul.

According to the review letter from Board Engineer Terry Vogt, the playground and the proposed lot for the future shul site plan are deficient of the 5% open space the Township requires to be set aside for recreational purposes.

Why in the world this developer insists on being stingy when planning a playground for a development with 250 families is beyond our comprehension.

Other than this variance, it appears that this is conforming application, despite that the subject site is located within the R-40 Residential Zone District which only permits single family homes on 40,000 sq feet lots, and no duplexes.

How in the world is this?

Let's break this down:

An application was once filed to the Planning Board for approval of a Planned Educational Campus at this site.

What is a Planned Educational Campus?

Lakewood Township's zoning ordinances permit, in certain residential areas, for developers of 3 contiguous acres of land, to seek approval for a Planned Educational Campus which is to contain housing and accessory uses "proportionate to the educational facilities intended for only for faculty and students who will attend or staff the institution's educational facilities and that is adjoining to or within 500 feet of faculty and student housing so as to create a unified campus setting".

In other words, if you own 3 acres of land, you get to build a campus of "housing for students and families" as long as their school is within 500 feet of the Planned Educational Campus. 

This "campus" can contain up to 28 dwelling units per acre, across single family homes, duplexes, townhomes, and even apartment buildings. In contrast, most residential duplex developments in Lakewood contain approximately 8 units per acre.

So which schools are eligible?

The ordinance define a "campus school" as a "not for profit institution of higher education that is a not for profit entity that is fully accredited and licensed by the Office of the Secretary of Higher Education of the State of New Jersey and one that offers both undergraduate and graduate degrees and is devoted to higher education and no other forms of education".

Additionally, the land and all structures including dwelling units shall be owned and developed only by the institution of higher education and not by or in partnership or in other arrangement with any investor group, construction company, a not for profit entity or any other third party.

Note that the Township ordinance does not preclude a private developer for applying for approval to build an educational campus, however, the end user can only be students and their families, and all structures must be wholly owned by the school (and will be tax-exempt).

Prior to 2017, when the Township adopted their recent Master Plan, there were a handful of Educational Campuses already approved by the Planning Board. One of these campus applications was for hundreds of residential apartments at the current site of Yeshiva Gedola of South Jersey on Cross Street. That application was filed by developer Moishe Mendlowitz who is the brother-in-law of the yeshiva's Rosh Yeshiva Rabbi Sholom Strickman.

Most of the Cross Street/ Prospect Street/ Massachusetts Avenue "triangle" is zoned R-20 or R-40, which permit only Single Family Houses on 20,000 sq feet lots or 40,000 sq feet lots, respectively.

At one point during the 2017 Master Plan process, developers snuck in requests to downzone this area to R7.5 or R-10 (7,500 sq feet - 10,000 sq feet lots respectively, with duplexes permitted). However, the Planning Board subsequently insisted that Cross Street not be zoned less than R-12 which permits only Single Family Houses on 12,000 sq feet lots, and no duplexes.

In response, the developer of the Planned Educational Campus approval at the current Yeshiva Gedola of South Jersey location on Cross Street sent Attorney Paul Schneider to ask the Planning Board to include in the Master Plan a clause that permits developers of Planned Educational Campus approvals (which have not actually constructed such campuses) to re-submit to the Planning Board as an R-7.5, on the basis that duplexes on 10,000 sq feet lots (approximately 8 units per acre) would be way less dense than the 28 units per acre permitted in the already-approved Educational Campuses.

The Planning Board agreed to this request, with specific conditions that permit "existing, valid campus development approvals to [resubmit as] R7.5 instead of the existing campus approval, subject to the campus approval being in place at the time of adoption of the Master Plan".

In other words, despite that Cross Street is not zoned for duplexes, as long as a developer already has - at the time of adoption of the Master Plan - a Planning Board approval for an educational campus, they can drop their plans for an educational campus (which is limited to students and their families) and resubmit for approval to build an R7.5 duplex development (with no restrictions on ownership and end users).

Meaning, there doesn't really need to be any actual school. There just needs to be a developer who submits an application for an Educational Campus, and is then permitted to get approval for a bunch of duplexes.

Isn't that awesome? Guess what? It gets way, way better than just this!

When the Township Committee adopted the Master Plan at the end of 2017, they omitted this "educational campus to R7.5" item. However, several months later, in July 2018, they adopted Ordinance 2018-35 which does permit this - but with a very different wording from the specific wording used by the Planning Board.

Ordinance 2018-35 says:

"In all Residential Zoning districts, any tract for which a complete application for a Planned Educational Campus has been filed with the Lakewood Planning Board... re-approval for development of that tract shall be conditionally permitted in accordance with the provisions of the R-7.5 District."

There are 2 issues with the wording of this ordinance:

1) Why the sudden change to include any tract for which a complete application for a Planned Educational Campus has been filed with the Lakewood Planning Board? This is not the wording of the Master Plan as that only included "Planning Board approvals", and not "complete applications".

2) Why did the Committee delay adoption of this ordinance until July 2018 when the rest of the Master Plan was already adopted in late 2017?

There appears to be one single answer to both of these questions, and it all ties in to the application currently pending before the Planning Board.

On March 6, 2018 developers, under the applicant name "Yeshiva Chemdas Hatorah", filed application SP 2290 for a campus adjacent to the existing Yeshiva Chemdas Hatorah location on Massachusetts Avenue. The application proposed a campus with a 3-story yeshiva building, 38 dormitory rooms, 6 townhomes and a 4-story Multi-Family building with 264 apartments.

Although filed with the Board office in March 2018, SP 2290 was only first presented to the Board (and made known to the public) on December 11, 2018.

This delay appears to fit perfectly with the timing of Ordinance 2018-35 which the Committee delayed in adopting on final reading until July 2018. The committee's delay gave this developer sufficient time to "file" his applications to the Planning Board office.

And, the change of wording in the 2018 ordinance vs. the wording that the Planning Board dictated into the 2017 Master Plan now also becomes clear - the Committee changed the language for their ordinance in order to permit this developer to be eligible to resubmit as an R7.5 as long as he simply "filed applications with the Planning Board for Educational Campuses" - he didn't actually need to receive Board approval for such major applications. Under the Master Plan wording, it is quite possible that an Educational Campus application which was presented to the Board with a full public hearing would have actually been denied, and then the developer would not have been able to resubmit for R7.5 duplexes.

By the way, you may wonder, why did the Committee go to all this trouble to enable things behind-the-scenes when they could have much simpler changed the zoning to permit many duplexes here. The answer is that the Planning Board included into the Master Plan that any increases of density south of the lake needed to wait until many roads in Lakewood were widened, and the Committee was working hard to find a way to bypass this clause so they could increase the density even before the state and county get a chance to widen our roads.

The Planning Board reviews all land use related ordinances which the Township Committee proposes. So, you may wonder, how did the Planning Board, who reviewed the proposed ordinance on July 10, 2018, let the Committee adopt Ordinance 2018-35 without complaining about change in the language?

Great question!

Firstly, the good news that it was actually a 4-4 vote, so not everyone's eyes were closed that night.

However, several things did go wrong that night. 1) Board Member Eli Rennert who dictated the language of this proposal in the Master Plan was not present that night. He would have made a majority vote in opposition to ordinance. 2) Engineer Brian Flannery, who did not disclose who he was representing, told the Planning Board that the Township Attorney and Planner had "some concerns that the language of the Master Plan was a violation of spot zoning" and therefore, the Committee "made a small change in the wording in order to ensure they were not doing a spot zoning violations." 

In other words, Brian sweet talked the Board into thinking that this was simply a technical change in order to comply with all laws. Remember, the board members do not see applications when they are filed with the office, they only see them when they are actually presented to the Board, therefore, the board members had no idea when they reviewed this ordinance that there also were these 2 educational applications "filed with the Board".

(By the way, the Planning Board should have been provided with T&M Associates, their planners who authored the Master Plan as they were the best people who could have properly explained to the Board the difference in the wording.)

Anyways, the Planning Board sent a letter to the Committee saying that they had a 4-4 vote on this ordinance review. The committee then adopted it as-is.

Now we get back to Application SP 2290 for the Yeshiva and 264 apartments on Massachusetts Avenue. The application was first presented to the Board at a public hearing on December 11, 2018. At that hearing, board members mentioned that the Township ordinance restricts educational campuses only to a "not for profit institution of higher education that is a not for profit entity that is fully accredited and licensed by the Office of the Secretary of Higher Education of the State of New Jersey and one that offers both undergraduate and graduate degrees and is devoted to higher education and no other forms of education", and Yeshiva Chemdas Hatorah only offers a Bachelor's Degree but not a graduate degree.

At that hearing, the developer was represented by Attorney Adam Pfeffer. Mr. Pfeffer asked the Board to carry the application so they could look further into the matter.

The application was finally brought back to the Board on March 3, 2020. At that point, the developer also retained premier land use Attorney John Doyle.

Mr. Doyle argued that the Township ordinance does not restrict "non-graduate degree schools" from presenting an application for an Educational Campus, rather, the ordinance stipulates that "the land and all structures including dwelling units shall be owned and developed only by the institution of higher education and not by or in partnership or in other arrangement with any investor group, construction company, a not for profit entity or any other third party" and that campus must be "proportionate to the educational facilities intended only for faculty and students who will attend or staff the institution's educational facilities and that is adjoining to or within 500 feet of faculty and student housing so as to create a unified campus setting", in other words, the ordinance delineates that the end-user of the campus must be a a school which offers a graduate degree and that the land and structures must be owned by the school, however, this does not preclude Yeshiva Chemdas Hatorah from presenting an application to the Planning Board because, they can later apply to the state to be approved to grant Graduate Degrees.

Mr. Doyle likened this to a bar which applies now for Site Plan approval to the Planning Board and gets a liquor license only when it actually opens, and similarly to a developer who applies for Planning Board approval to build a medical office and only later finds a doctor to use the office (i.e. you don't need to be a doctor in order to build a medical office, you can build the office and then rent it out to a doctor, or, you can become a doctor while you are building your future medical office).

Board Attorney John Jackson pointed out to the Board that there are a number of cases where the courts have said that you can get an outside agency approval after you get your land use board approval, however, there is also case law from Morris County where the local Board looked at the required outside agency approval and decided that that approval was too outlandish and difficult to obtain so the Board declined to hear the application. In that case, the court upheld the Board's decision and ruled that it is indeed the Board's discretion to say that they will not even hear a case where they feel that the outside agency approval is too farfetched.

Just before the Board voted on the matter, Attorney Adam Pfeffer told the Board that they really don't have any plans to build the Educational Campus, rather, they plan on re-submitting for duplexes as they would be permitted under Ordinance 2018-35 - as long as the Board now votes that their Educational Campus application is "a complete application".

Despite Mr. Jackson's advice that they do have latitude to deny to hear the application, and despite hearing directly from Mr. Pfeffer that if they vote that this a "complete application" they will soon see an application for a bunch of duplexes, the members of the Planning Board voted, 4-3, to consider this a "complete application".

Of high interest is that right after the Board voted, Mr. Jackson stated the Board has its own authority to deem an application complete, and while the applicant can now go forward [and resubmit for R7.5 duplexes], this does not preclude the Board from changing its mind at a later date (and withdrawing its "application complete" threshold) or from someone from objecting on that basis.

Subsequently, on July 6, 2021, the developers of Yeshiva Chemdas Hatorah presented their "resubmit" application for 73 homes on the site of their previously proposed Massachusetts Avenue "educational campus".

So... you are wondering, what does all this have to do with the proposed duplexes at James Street and Cross Street??

So here's the amazing part of all this: We knew that, prior to seeing this application for 250 homes at James and Cross Street, there was no Educational Campus approved at this site, so we dug deeper. This is when we first learned that at the same time that application SP 2290 was filed (back in March 2018), application SP 2291 was filed for an additional "educational campus" at James Street and Cross Street.

Yup! You read that correctly! The developer filed two applications for educational campuses at these separate sites.

So why was this application never presented to the Board?

Apparently, the developer believes that once the Board voted that SP 2290 is a "complete application" despite that Yeshiva Chemdas Hatorah is not state-approved to give Graduate Degrees, their vote was a "Din on the Gavra" that Yeshiva Chemdas Hatorah is officially deemed eligible to "file complete applications for Educational Campuses", and therefore, he doesn't even need to present SP 2291 to the Board as, "filing it in the office" is sufficient for it to be considered "filed a complete application".

To add to this absurd scandal, we note that Planning Board Administrator Ally Morris and Attorney John Jackson were complacent about all this all being done by this developer away from the public eye. In allowing this developer to claim to have "filed a complete application" without receiving a stamp of approval from the Board, the planning board staff basically rezoned this tract of land down from an R-40 to R-7.5.

So, to wrap this up, here's how this works:

1. Duplexes are not permitted in your zone

2. File a complete application to the Planning Board to build hundreds of apartments on your site. 

3. No need to be a school, own a school, or know a school. Just need to say that you'll find a school later on, or that you'll become a school later on.

4. Presto! You can now return to the Planning Board with "fully conforming duplexes"

(The good news is that steps 1-3 needed to be done by July 2018, so no one else can now start from scratch.)

Application SD 2511 is currently scheduled to be presented to the Planning Board on Tuesday, August 9th. The meeting will be held at Town Hall, 231 3rd Street and will begin at 6:00pm. Members of the public will be given an opportunity to ask questions and comment on the application.

We have received reports that some residents are pursuing hiring an attorney to fight this application.

It is quite possible that an attorney would be successful in tossing out the application due to the scandalous way it was crafted behind the scenes.

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