UPDATE: FOLLOWING EXPOSURE ON FAA, NEIGHBORS WIN BATTLE FOR CHESTNUT STREET

As previously reported here on FAA News (https://www.faanews.com/2022/06/chestnut-street-duplex-application-is.html), an application was presented Monday night to Lakewood Township's Zoning Board for a cul-de-sac off Chestnut Street. Thanks to our exposure, neighbors knew how to say "not so fast".


The application submitted by Jacob Lipshitz and Hersh Eissenberg of Chestnut Holdings NJ LLC seeks Subdivision approval from Lakewood Township's Zoning Board of Adjustment to construct a cul-de-sac off Chestnut Street across from Evergreen Avenue with 14 duplex structures (28 dwelling units).


According to the Site Plan drawn up by NewLines Engineering, the engineer for this application as well as a vast majority of Lakewood land use board applications, the 4.65 acre site is located mainly in the HD-7 zone, but the backyards of one side of the proposed homes appear to be in the R-12 zone - and all eyes were blind about this point until our exposure.


The HD-7 zone conditionally permits duplexes on lot sizes of a minimum of 8,500 square feet and 60 feet wide, up to 8 duplex dwelling units and associated roadways per acre, as long as no homes are built within 200 feet of Route 9. Most of the proposed duplexes are located in the HD-7 zone and do indeed conform to this conditionally permitted use ordinance.


However, the lots on the left side are split between the HD-7 zone and the R-12 zone. The proposed houses are physically within the HD-7 zone, but the rear yards are physically within the R-12 zone.


The R-12 zone only permits Single Family Houses on 12,000 sq feet each. Duplexes are not a permitted use in the zone. As such, a Use Variance is required for all the duplexes that cross into the R-12 zone.


Whenever a Use Variance is required, the applicant is required to mail legal notice to the property owners within 200 feet that he is applying for a Use Variance.


Additionally, under the New Jersey Municipal Land Use Law, a Zoning Board may only grant a Use Variance "in particular cases for special reasons", which the applicant must prove. This is much different from a "standard" planning board application where it's a permitted use but there is a bulk variance (such as for lot size); in those cases the applicant only needs to prove that "the benefits of the deviation would substantially outweigh any detriment", and every applicant states that Lakewood's Master Plan states that we have an insatiable need for more housing and this benefit substantially outweighs the detriment of increased traffic congestion.


The applicant originally tried pretending that there was no Use Variance required, and the Board Engineer appeared to be following along with their game.


The legal notice published by Attorney Sam Brown of The Brown Law Firm erroneously states that the site is in the HD-7 zone and the R-15 zone instead of the R-12 zone. It also states that the only use variance needed is for the existing single family home in the HD-7 zone to remain, and that the proposed duplexes do not require use variances.


This legal notice is completely deficienct. As such, the Zoning Board even lacked jurisdiction to begin hearing the application and the applicant would need return at a future hearing after publishing a new notice with the correct information.


Additionally, NewLines Engineering submitted to the Board a cover letter which claims that the application is variance free and that the only use variance needed is for the existing single family home in the HD-7 zone to remain.


The cover letter from NewLines Engineering fails to acknowledge that a portion of the site is actually in the R-12 zone and therefore a use variance is actually required for all those duplexes.


(By the way, doesn't it seem crazy that some residential zones in Lakewood Township permit duplexes and townhouses and do not permit Single Family Houses? Why the Township insists on ever increasing density is beyond our comprehension!)


Even the Board Engineer from Remington and Vernick Engineers seems to be playing blind to all of this. The Board Engineer reviews all applications and always provides a thorough review letter for "full disclosure purposes" so the Board understands what is being asked of them to vote on. In this case though, the Board Engineer writes simply that all the proposed duplexes are in the HD-7 zone and that the only use variance needed is for the existing single family home in the HD-7 zone to remain.


At the hearing this Monday night, the applicant was represented by Attorney Sam Brown and Engineer Brian Flannery. The applicant's professionals represented to the Board that the duplexes are "fully conforming" and do not require any use variance.


Neighbors immediately rose up and explained to the Board how indeed the lots are split into the R-12 zone and they do require a Use Variance.


Engineer Brian Flannery tearfully admittedly that "the rear yards are in the R-12" but tried to argue that "the physical duplexes are only in the HD-7".


Board Attorney Jerry Dasti explained to Brian that this in indeed an application for "duplex lots in the R-12" and that this does require a Use Variance and a new notice. 


Attorney Sam Brown swiftly agreed to the sad news that his application does require a Use Variance. However, he attempted to continue the hearing with no new notice as he argued that his notice included a clause that "the application shall include a request for any and all variances including a use variance, and waivers as may be required by submission and discussion of the plan. Attorney Dasti refused, arguing that use variances require a "proper notice" and not simply to be relied upon as part of the "catch-all clause".


The Board carried the hearing until after new noticed are published.


The Board is not meeting in August so the meeting will be carried until September.


If and when the application is brought back to the Zoning Board, neighbors will have the opportunity to address an additional major problem with the application.


All 28 of the new duplex houses are proposed to be accessed from one single cul-de-sac. The New Jersey Residential Site Improvements Standard (RSIS) does not permit more than 24 single family or duplex units on a cul-de-sac unless there is also an additional secondary access road.


It appears that the application seems to be trying to "work around this issue" by widening the cartway width to 40 feet wide and installing a boulevard at the intersection. RSIS permits more homes on a block as long as you widen the cartway width to 40 feet wide and install a boulevard at the intersection. The purpose of the boulevard is to maintain access for vehicles even if there is a vehicle crash at the only roadway access (the boulevard will keep vehicles from rolling over the width of the entire roadway).


The issue with is that RSIS defines a "Multifamily development" as "a development other than one-or two-family detached dwellings where the dwellings are arranged so that there are more than two units attached, regardless of the presence of lot lines." 


In other words, "Multifamily developments" - which are permitted to have more than 24 houses if you have a boulevard and widened roadway - is only for developments of "other than one-or two-family detached dwellings where the dwellings are arranged so that there are more than two units attached". Duplexes are not permitted to use this loophole to squeeze more houses onto the cul-de-sac road.


The applicant may attempt to "work around this issue" by rebranding their "duplexes" into "Multi-Family Housing", however, that won't work for 2 reasons:


1) RSIS clearly eliminates duplexes from the definition of a Multi-Family development.


2) Neither the HD-7 or the R-12 zone permit Multi-Family Housing. Therefore, to permit Multi-Family Housing, a use variance would be required for every single duplex, whether it is in the HD-7 zone or the R-12 zone.


As such, the applicant's method of simply adding a boulevard and widened the roadway width did not solve anything.



As previously reported here on FAA News,


(https://www.faanews.com/2022/06/breaking-news-lakewood-zoning-board.html and https://www.faanews.com/2022/05/trees-lead-to-forest-fires-so-lets-cut.html), Lakewood Township's Zoning Board recently rejected 2 applications for duplexes on Chestnut Street.


Those applications also required use variances as those sites are in the R20 zone which only permits Single Family Houses on lots of at least 20,000 sq feet, and no duplexes.


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