LAWSUIT SEEKS TO IMMEDIATELY SHUT DOWN BNOS BROCHA SIMCHA HALL AS IT NEVER RECEIVED TOWNSHIP APPROVAL

Clayton Associates, which operates at 1650 Oak Street, is seeking court approval to shut down Bnos Brocha's simcha hall, on the basis that the school never received Township Zoning Board approval for a banquet hall which is not a permitted use in the industrial park.

Bnos Brocha is located at 1665 Corporate Road West, in back of Clayton's property.

(As previously reported here on FAA News (https://www.faanews.com/2022/08/back-in-court-judge-to-lake-terrace-if.html), Clayton Associates has also filed a lawsuit seeking to shut down Lake Terrace for the same reason).

Back in November 2020, Toms River Attorney Rob Shea representing Clayton, sent a letter to Lakewood Township officials notifying them that Bnos Brocha was being utilized in manners "contrary to the resolutions, permits, and approvals previously obtained for the property", and as a result of illegal uses and illegally expanded uses, "a nuisance has been created impacting... the surrounding properties.... [with] parking issues [and] with traffic circulation and buses". This ultimately impedes the other businesses access to their own parking spaces for their own employees and/or customers".

Mr. Shea's letter asserted that Bnos Brocha reconfigured their parking lot to install an in-ground pool and this removed the originally approved bus parking spaces, thereby forcing the buses to utilize the local roadway, ultimately clogging the narrow roadways.

Mr. Shea requested that the Township use its statutory enforcement powers to restrict use of the school only according to the approvals it received.

The Township Committee, Zoning Officer and Director of Code Enforcement chose not to answer the letter.

As a result, on January 11, 2021, Clayton filed in Ocean County Superior Court a Verified Complaint and Order to Show Cause, charging that the school was renting space to a linen store called Table Linen, LLC, a/k/a La Tableau, without ever having received Township approval for this outside business on school property. The lawsuit named both Bnos Brocha, as well as the Township of Lakewood for refusing to enforce its zoning ordinances.

The Order to Show Cause seeked an immediate hearing for injunctive relief to immediately shut down operation of all non-school purposes uses on the property.

On February 5, 2021, Lakewood Township Attorney Steven Secare submitted a letter of Opposition to the Motion. 

Mr. Secare did not address whether or not Bnos Brocha was in compliance with Township ordinances and their land use board approvals, or whether or not Township officials ever inspected the property in response to complaints of any violations.

Rather, Mr. Secare argued simply that the Plaintiff did not yet make the case to be granted injunction restraints, and that "based upon the assertions alleged by the Plaintiff, not yet subject to the scrutiny of discovery and examination, such a preliminary or interlocutory injunction, is not warranted at this time".

Judge Marlene Ford held oral arguments on the case on February 19, 2021.

Clayton Associates was represented by Attorney Rob Shea. Bnos Brocha was represented by Springfield Attorney Howard Lipstein. Table Linen was represented by Lakewood Attorney Mordechai Gross. Township of Lakewood was represented by Toms River Attorney Steven Secare.

At the hearing it was somehow revealed that Bnos Brocha also has a banquet hall for which they never received any Township approval.

Following the hearing, on March 8, 2021, Judge Ford signed the following Order:

1. The Plaintiff's Order to Show Cause, with regard to Bnos Brocha, is granted wherein restraints are ordered to prohibit Bnos Brocha from conducting operations other than what are expressly permitted in their Use Variance resolution...

2. Bnos Brocha is restrained if Simcha Hall is used for business purpose, for example, as a catering hall, for non-school purposes unless [it's] an approved use... or otherwise permitted under Lakewood ordinances.

3. Within 14 days, Plaintiff will file its amended complaint adding Bnos Brocha Simcha Catering Hall as a named defendant.

In essence, Judge Ford granted injunction restraints against Bnos Brocha from using the Simcha Hall for any business, non-school purposes, pending the outcome of the lawsuit.

Subsequently, on March 22, 2021, Clayton added "Bnos Simcha Hall" as an additional defendant. On June 7, 2021, Clayton filed a second amended complaint to add Table Linen to the lawsuit.

In August 2021, the Township changed their attorney to Jean Ciprani instead of Steven Secare.

In August 2021, as part of the discovery process of the lawsuit, Clayton served Lakewood Township and Bnos Brocha and Bnos Brocha Simcha Hall with "Requests for Admissions" which are questions relating to the lawsuit which they are required to answer.

Some of the requests to the Township, which seeked answers of admitted or denied, included the following:

10. The Township does not possess any application for Certificate of Occupancy for the use of a banquet hall/catering facility at this property

12. The Township is not in possession of any Resolution from the Land Use Board approving the use of a banquet hall/catering facility

15. The Township has never issued a warning for improper operation of Bnos Brocha's simcha hall

22. The Township has inspected the property for improper operation of a banquet hall/catering facility

Patrick Donnelly, the Township Manager, Francine Siegel, the Township's Zoning Officer, and Mike Saccomanno, the Township's Director of Code Enforcement, all supplied the following responses:

10. Admit

12. Admit

15. Admit

22. Deny

Some of the requests to Defendants Bnos Brocha and Bnos Brocha Simcha Hall, which seeked answers of admitted or denied, included the following:

6. Bnos Brocha operates the in-ground pool exclusively for its students

7. Bnos Brocha has a lease, agreement, or contract with Defendant Bnos Brocha Simcha Hall for the use and/or operation of a banquet hall/catering facility on the Property.

8. Bnos Brocha acknowledges that the property is located in the M-1 industrial zone.

9. Banquet halls/catering facilities are not permitted uses in the M-1 zone.

10. Bnos Brocha did not obtain any Land Use Board Resolutions of Approval for the operation of a banquet hall/catering facility on its property.

11. Bnos Brocha operates a banquet hall/catering facility on the Property.

12. Bnos Brocha allows use of its pool during events at the banquet hall/catering facility on the property.

15. Bnos Brocha is aware of the parking and traffic congestion during pick-up and drop-off hours of its students.

28. Events such as weddings, bar mitzvahs, bat mitzvahs, receptions and similar events are held or performed at the banquet hall/catering facility on the Property.

In October 2021, Bnos Brocha gave the following responses:

6. Admit

7. Deny, Bnos Brocha Simcha Hall is not a separate legal entity.

8. Admit

9. Deny, same is an accessory use of Bnos Brocha.

10. Admit, same is a legal accessory use.

11. Admit

12. Deny. The pool is not used during events.

15. Deny. There is no parking or traffic congestion within the usual operation of a school.

28. Admit.

Together with these responses, Mr. Lipstein wrote to Mr. Shea that he will not give separate responses as to "Bnos Brocha Simcha Hall" as that is not a separate legal entity. He further requested that Mr. Shea consent to removing Bnos Brocha Simcha Hall as a separately named defendant.

After Mr. Shea did not respond to this request, on December 17, 2021, Bnos Brocha filed a Motion for Partial Summary Judgement. They argued to remove Bnos Brocha Simcha Hall as a defendant, as "Bnos Brocha Simcha Hall" was not a separate legal entity, but rather, it was simply the name of a banquet hall which was operated by the Bnos Brocha school.

In response, Clayton filed a Cross Motion for Partial Summary Judgement seeking a final disposition on the question of the property's banquet hall use. As part of this Cross Motion, Clayton provided as evidence that the simcha hall is indeed being used for non-school business purposes (contrary to Judge Ford's March 8, 2021 Order), recent online reviews from guests of events at the Bnos Brocha Simcha Hall.

Prior to oral arguments being held, Lakewood Township appointed Attorney Robin La Bue to beseech Judge Ford not to order a Writ of Mandamus which would force the Township to enforce its ordinances to prevent non-permitted uses at Bnos Brocha, arguing again that "the relief sought against the Township is improper and premature".

Ms. La Bue claimed that prior to filing their initial lawsuit, the Plaintiff only gave the Township 2 months notice to investigate the allegations and that this was "not sufficient time".

Ms. La Bue further appealed to Judge Ford that a Mandamus is only appropriate when there is a "clear violation" and the banquet hall use does not suffice as a "clear violation" as the Plaintiff indicated that they do not know exactly when this illegal use first began (i.e. They know that there is a currently an illegal use of a banquet hall, but they do not know when that illegal use first began).

Ms. La Bue further noted that Bnos Brocha asserts that their banquet hall is permitted as an accessory use to their school, and they have retained an expert to address this issue. Until such time as this testimony is presented, "substantial issues of fact exist on whether the Defendants have an entitlement to continuation of the use... These material issues preclude a determination as to the permitted uses and accessory uses of the property at this time... The Township will abide by the Court's determination concerning the permitted uses, or permitted accessory uses of the property. Until such time, the relief sought against the Township is premature and inappropriate."

Judge Ford held a hearing on the matter on February 17, 2022.

On his motion to order a Writ of Mandamus against the Township, Mr. Shea noted that despite the Township attorneys representing that they are "actively investigating" the allegations of illegal use that he brought to their attention in November 2020, in response to his August 2021 Request for Admissions, the Township's Zoning Officer and Director of Code Enforcement admitted that they are aware that Bnos Brocha never applied for a Certificate of Occupancy for a banquet hall, they never inspected the property for improper operation of a banquet hall/catering facility, and they never issued a warning for improper operation of Bnos Brocha's simcha hall - despite being put on notice of such illegal use as a result of this lawsuit.

On his Motion to Enforce Litigant's Rights against Bnos Brocha, Mr. Shea presented reviews from online websites supposedly from recent guests of events at Bnos Brocha which implies that Bnos Brocha does indeed have a banquet hall/catering facility which operates as a business for whoever wants to rent it out, and not just for school purposes as per Judge Ford's 3/8/21 order.

Mr. Lipstein (representing Bnos Brocha responded that the simcha hall is not "for business purposes", but rather, "Bnos Brocha is a community school for the Religious Jewish community, and the banquet hall is used strictly for religious events by members of the community school".

Ultimately, Judge Ford granted Bnos Brocha's motion to remove without prejudice "Bnos Brocha Simcha Hall" as a defendant, and denied Clayton's Cross Motion.

However, Judge Ford did sign the following Order:

1. The restraints contained in the Court's order of March 8, 2021 shall continue.

2. Ordered that the banquet/catering facility at [Bnos Brocha] shall continue as per the order of 3/8/21 to be used only for school purposes by defendant Bnos Brocha and/or any successors, vendors, for purposes associated with the school and not for business or commercial use.

So... We learned that the Bnos Brocha simcha hall is allowed to be used "only for school purposes by defendant Bnos Brocha and vendors", and that is used "strictly for religious events by members of the community school".

Until June 22nd that is.

Clayton obtained a copy of Bnos Brocha's school calendar which indicates that their last day of school was June 22nd.

Clayton has also obtained a copy of the simcha hall use agreement which indicates that for a fee, the school does rent out the hall - in contrast to the representation by their attorney at the February 17, 2022 hearing.

Clayton's investigative team observed the simcha hall being used on 16 days since the school year ended.

In response, Clayton has now filed a Motion to Enforce Litigant's Rights seeking to immediately cease all activity in the simcha hall "until such time as it receives all requisite and unappealable approvals for same".

In the moving documents, Attorney Shea notes that  "each event contained similar characteristics; numerous patrons were seen entering and exiting the property. These patrons parked along both sides of Corporate Road, this creating heavy traffic congestion and rendering the road a one-way street with cars attempting to navigate around one another to safely pass. Furthermore, patrons also parked in the surrounding accessways, including Plaintiffs, this preventing ingress or egress to the properties."

The motion continues that on at least one date in August, there were "over 100 cars parked on Corporate Road. Several cars were parked facing the wrong direction and others [were] parked in front of accessways of the surrounding properties including Plaintiffs, and even inside Plaintiffs parking lot itself... The resulting traffic made it difficult for cars and trucks to navigate the road... On one occasion, a tractor trailer was forced to wait at the end of the roadway for the street to clear before it could pass safely".

Mr. Shea quotes case law that a claim that a party is acting in violation of a court order "should be brought before the court that issued that order", and that "wilful disobedience of a court order has been held to merit punishment", and further that, "monetary sanction is not for the purpose of punishment but rather for as a coercive measure to facilitate the enforcement of a court order".

The proposed Order, as drafted by Mr. Shea states:

IT IS on this day of September, 2022,

ORDERED, that Bnos Brocha, Inc. (“Bnos”) is hereby found in violation of the Court Order dated March 8, 2021 and the Court Order dated February 17, 2022. The Court further finds that Defendants’ actions constitute a willful and unjustifiable violation of same;

ORDERED, that Bnos is to immediately cease all activity in its catering/banquet hall known as “Simcha Hall” until such time as it receives all requisite and unappealable approvals for same;

ORDERED that Defendants shall pay sanctions in the amount of $_________ for their repeated violations of the March 8, 2021 Order and the February 17, 2022 Order;

ORDERED, that Bnos shall pay Plaintiff’s attorney fees and legal expenses related to the filing of this motion. Plaintiff’s counsel shall submit an Affidavit of 

Services within 15 days of this Order. The same shall be paid within 30 days from the date in which the affidavit of services are approved by this Court. 

Bnos Brocha and Lakewood Township have not yet responded to this motion which was filed just recently.

Judge Ford is currently scheduled to release her decision on the motion next Friday, on September 9th without oral arguments however, in the coming days, the Defendants are likely to request oral arguments prior to the decision being released.

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