BOARD ATTORNEY: LAKE TERRACE IS MEDDLING SIMPLY AS RETALIATION

As previously reported here on FAA News (most recently at https://www.faanews.com/2022/08/its-now-court-order-judge-prohibits.html), there has been an ongoing year-and-a-half long legal land use saga regarding the famous Lake Terrace wedding and concert hall in Lakewood which began after Clayton Associates, an industrial neighbor, filed a lawsuit seeking to shut down Lake Terrace after discovering that Lake Terrace never received Township Zoning Board approval to build a wedding hall.

This week, Planning Board Attorney John Jackson called out the owners of Lake Terrace for "retaliating" against the owners of Clayton Associates' property by meddling in what would typically be a routine matter at the Planning Board.

In November 2021, Sudler Lakewood LLC which owns properties adjacent to Lake Terrace, presented an application to the Lakewood Planning Board for a Minor Subdivision of their single property into 4 separate lots for financial reasons (to renegotiate their mortgage). This would typically be a very routine matter for the Board, as the applicant is not seeking to construct anything or to make any changes to the site, but rather to draw an imaginary line through the lot so they can renegotiate their mortgage.

However, this application was anything but routine.

Mordechai Sternstein, an owner of Lake Terrace, was present at the meeting and he was represented as well by Attorney Ron Gasorowski who told the Board that he was representing "Lake Terrace and Bnos Brocho who are neighbors of the Sudler property".

Mr. Gasorowski objected to the application on several issues.

The existing single lot currently has access directly onto Towbin Avenue. By subdividing this lot into 4 lots, some of the new lots (which, by the way, are mainly unusable due to wetlands) will no longer have access directly onto a street, therefore, the applicant seeked to provide easements across the lots for cross-access so they could continue to cut the trees and maintain the wetland property.

Mr. Gasorowski claimed that "easements" are not "permitted uses" under Lakewood Township's zoning ordinances and therefore this application required a Use Variance which only the Zoning Board - and not the Planning Board - could grant.

Furthermore, Mr. Gasorowski argued that the legal notice published by Sudler was insufficient as it did not disclose that the application required a Use Variance.

Mr. Gasorowski further argued that, under state law, only the Zoning Board has jurisdiction to approve a Subdivision where the new lots would not front a "street", and in this case, by approving this Minor Subdivision, the Planning Board would be approving a Subdivision where the new lots would not front a "street".

Additionally, Mr. Gasorowski argued that the New Jersey Municipal Land Use Law prohibits Municipalities from issuing construction permits for structures on lots which do not abut public streets, and by approving this Minor Subdivision, the Board would be creating lots upon which, the Township would not be permitted to issue construction permits.

The Board noted that the only issue they had with the application was that the Township zoning ordinances require a sidewalk in every Subdivision application, whether for a major development or for a Minor financial matter.

In response, the applicant agreed to install a sidewalk as a condition of the Minor Subdivision approval.

The Board then approved the Minor Subdivision application.

Shortly thereafter, Mr. Gasorowski, on behalf of KBS Mt. Prospect (the owners of Lake Terrace), filed a lawsuit against the Planning Board and Sudler.

In the Complaint in Lieu of Prerogative Writs, Mr. Gasorowski reiterated the arguments he presented at the Planning Board hearing, and claimed that the Board's approval of the Minor Subdivision was "arbitrary, capricious, and unreasonable" as it "failed to consider and apply important planning and zoning principles and requirements".

Attorney Jonathan Epstein of Faegre Drinker Biddle and Reath LLP on behalf of Sudler filed an Answer simply denying all allegations.

In additional correspondence to the court, Attorney Anthony R. Todaro on behalf of Sudler charges that the Minor Subdivision "does not prejudice Lake Terrace, however it does prejudice Sudler who is, in fact, prejudiced by the mere continued pending of this case - which is nothing more than 'an improper attempt to create protracted litigation as a retaliatory measure for the ancillary disputes between the parties' - as this litigation has delayed Sudler’s ability to perfect its approved subdivision and secure financing." 

Attorney Jilian Mcleer of King, Kitrick, Jackson, McWeeney, and Wells, LLC on behalf of the Lakewood Planning Board filed an Answer denying all allegations and also claiming in affirmation that Plaintiffs’ complaint fails to state a cause of action upon which relief can be granted; the claim set forth by plaintiffs is not a proper subject of equitable relief; and furthermore, relief should be denied due to the "unclean hands doctrine".

The unclean hands doctrine applies to cases where the plaintiff has acted unethically in connection to the circumstances that have led to the suit. Its intent is to keep a person from abusing the justice system in order to benefit from a situation they created by acting in bad faith.

At the recent Planning Board meeting, Sudler was back before the Board to request an extension to their previously approved Minor Subdivision application. Lake Terrace was again there to object to the extension and Planning Board Attorney John Jackson called out Lake Terrace for what he called "retaliation".

After approval of a Minor Subdivision, the developers need to file tax maps and that always takes some time. The New Jersey Municipal Land Use Law specifies that this filing must take place within 190 days from the date on which the Board adopts a resolution memorializing their approval, or the approval expires. In that case, the developer may apply to the Board for a one-year extension if "the developer proves to the reasonable satisfaction of the board that the developer was barred or prevented, directly or indirectly, from proceeding with the development because of delays in obtaining legally required approvals from other governmental entities and that the developer applied promptly for and diligently pursued the required approvals."

This is the extension which Sudler was seeking at the Board this past week. 

Typically, these extension applications are extremely routine, often not taking more than 90 seconds. However, this application was not at all routine. The owners of Lake Terrace were represented by Attorney Jan Meyer who opposed the extension.

In a letter to the Board, Mr. Meyer wrote that he opposes the granting of the requested extension because Sudler's lawsuits against Lake Terrace and Bnos Brocho "charge inter alia that there is too much traffic, overcrowding, excessive parking of vehicles on the roadways, parking lots, grassed areas and highly increased levels of traffic", and that the extension application is "for a relief that would clearly create an intensified use of the property as well as increased traffic leading to vehicular congestion that may not be appropriate for the site without a full engineering evaluation, inter alia of the ingress and egress and a new traffic study."

Mr. Meyer's letter continues that "We ask that the board does not grant the extension to the applicant and the applicant should some back to the board, if they so desire by filing a new application for the relief they are seeking."

Sudler's professionals' responded that their application does not, in fact, propose any new construction and therefore, they are not creating an intensified use of the property or increased traffic.

They further testified that they do, in fact, comply with the state law regarding the granting of extensions to a Minor Subdivision as they have been working over the past 190 days on filing the maps but they were held back due to outside government agencies.

Mr. Meyer tried telling the Board that they should deny this extension because "Sudler is suing the Township" (as parties to the Lake Terrace and Bnos Brocho lawsuits).

Planning Board Attorney John Jackson responded that it appeared to him that the owners of Lake Terrace were meddling in this very minor extension simply as "retaliation" against Sudler.

The Board then voted to approve the extension.

By the way, it is quite interesting that Lake Terrace was represented at the Planning Board by Attorney Jan Meyer instead of Attorney Ron Gasorowski who represented them at the initial Planning Board hearing and in the lawsuit, and it is also quite interesting that Mr. Meyer would come to the Planning Board for such a petty fight. A possible explanation is that the owners of Lake Terrace have realized that Mr. Meyer has become a familiar attorney to represent opposition at the Lakewood land use boards and they wanted to grab this opportunity to lock him in so he is, in the future, unable to represent any opposition against them. Another explanation is that Sudler is claiming that Mr. Gasorowski has a conflict and needs to recuse himself as he has previously represented them (Sudler) in their land use matters.

One final note: As stated above, the Planning Board conditioned their original approval on the applicant providing a sidewalk. Prior to installing this sidewalk, the applicant would need to provide engineering plans to the Township Engineer - but not to the Planning Board. One of Mr. Gasorowski's complaints at the original Planning Board hearing was that the Board should not approve their sidewalk prior to seeing the fully engineered plans. This argument is quite interesting because in their Zoning Board application to legalize their banquet hall, Lake Terrace did not include any sidewalks.








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