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Citing pending litigation they are fighting on the matter, Lakewood Planning Board members recently pushed back on hearing two applications which included yeshiva dormitories.

Birchas Chaim which already has an existing Yeshiva building located at 1111 Vine Street has now submitted a Site Plan application to the Planning Board to expand their building to build a dormitory.

Additionally, as first reported here on FAA News, Kollel Kodshim which is currently located in a temporary trailer at 223 12th Street between Clifton Avenue and Lexington Avenue, has submitted a Site Plan application to the Planning Board simply for a "new three-story educational building with a basement with associated off-street parking". Though their application and notice do not mention a dormitory, the architectural plans they submitted do show a dormitory with 5 dormitory rooms, a 1,295 sq foot lounge, and showers and a laundry room on the third floor.

Some time ago, when the yeshiva placed down temporary trailers, the neighbors expressed their displeasure, and the Yeshiva administration summoned the neighbors to a Din Torah by a Beis Din of ZABLA. Oral arguments have been concluded and the parties are awaiting a psak from Beis Din.

In the meantime, the yeshiva submitted their Site Plan application to the Planning Board. Neighbors who have received notice of the Planning Board application have retained Teaneck Attorney Jan Meyer to represent them. Mr. Meyer sent a letter asking the Board to postpone hearing this application until Beis Din issues their psak, and, as previously reported here on FAA News, the Board agreed to postpone the hearing until the October 25th public hearing.

Lakewood Township's zoning ordinances expressly permit dormitories only in Planned Educational Campuses which are available for "not for profit institutions of higher education... [which are] fully accredited and licensed by the Office of the Secretary of Higher Education of the State of New Jersey and... offers both undergraduate and graduate degrees". Such campuses are permitted only in certain zones, and on a minimum gross acreage of three acres.

Essentially, Lakewood Township's zoning ordinances prohibit the vast majority of yeshivos from operating dormitories and therefore, an application for a dormitory would require a Use Variance from the Zoning Board. Unlike the Planning Board, the Zoning Board not only may deny such an application, but legally must deny an application unless the applicant can testify why his use variance application is a "particular case for special reasons".

In the past, the Planning Board has - at the urging of school developers - "worked around this issue" by considering dormitories to be an "accessory use" to a school, thus eliminating the need for a Use Variance from the Zoning Board.

Lakewood Township's zoning ordinances for schools do not expressly list any specifically permitted uses as accessory to a school, however, the general "Definition of Terms" defines "accessory use" as "a use, structure or building that is customarily incidental and subordinate to that of the principal and on the same lot", and this is the "work around" that the Planning Board has used in the past.

However, the Planning Board is now deep involved a lawsuit over such an approval.

Attorney Meyer is currently suing the Planning Board over their approval of a dormitory for Yeshiva Toras Chaim on Ridge Avenue. The lawsuit charges that the Board heard the application on the theory that the dormitory was an “accessory use” to the school building which is a permitted use (but which has already been constructed), however, dormitories are not a permitted use in the Township's R-15 zone and therefore, construction of a standalone dormitory would require a use variance, which must be sought before the Zoning Board of Adjustment, not the Planning Board.

In addition, the lawsuit charges that the Board refused to grant the objectors a reasonable postponement so they could retain a licensed Planner and potentially other experts to provide testimony about the jurisdiction of the board and to testify as to the plans in its design.

All parties involved in the case have submitted Pre-trial memos, and Ocean County Superior Court Judge Marlene Ford held a trial Readiness Conference today for this case. Attorney Jan Meyer represented the neighbors, Attorney Brian Schoepfer represented Yeshiva Toras Chaim, and Attorney Jillian McLeer represented the Township Planning Board. Mr. Meyer informed the judge that he intends to soon file a Motion for Summary Judgement. Judge Ford directed him to file the motion within 45 days. A trial date, if necessary, will be scheduled after the Motion for Summary Judgement is filed and heard.

Earlier this year, Mr. Meyer was successful in getting Judge Ford to toss out a Lakewood Township Zoning Board approval of a Use Variance for homes on undersized lots on Spruce Street after the Board refused to postpone the hearing so the neighbors could have the opportunity to retain their own engineer to review the plans.

At the recent Planning Board meeting, when the Board Administrator mentioned the dormitory applications and the request to carry them, Board Chairman Moshe Neiman mentioned that "we do not yet have clarity whether or not dormitories are an accessory use to a school. We always have a 20 minute argument before all of these applications as to this issue, and I would like to avoid that."

"The best way to avoid this argument would be make some sort of ordinance that clarifies this matter", Mr. Neiman continued. [That would require the Township Committee to actually sit down and adopt such an ordinance.]

Board member David Helmreich then suggested that the Planning Board send these applications to the Zoning Board for a determination as to their permissibility under the Township's ordinance, as it is primarily the jurisdiction of the Zoning Board to make such determinations.

Board Attorney John Jackson (who, by the way, gets paid by the Township's taxpayers to fight dormitory lawsuits) pushed back saying "no, the Planning Board can make its own determination if dormitories are an appropriate accessory use to a school in this community.

As such, both dormitory applications are currently listed on the the Board's October 25th public hearing agenda.

[Fun fact: The New Jersey Municipal Land Use Law requires applicants to provide notice to property owners within 200 feet of the application site, and requires the notice to "state the date, time and place of the hearing, [and] the nature of the matters to be considered".

The New Jersey Appellate Division has found, in the landmark 1996 case known as Perlmart vs. Lacey Twp Planning Board, that the purpose of the notice is to ensure the public is properly apprised "so they may make an informed determination as to whether they should participate in the hearing or at least look more closely at the plans on file".

More recently, in the 2019 case known as Lakewood Realty Associates vs. Lakewood Township Planning Board & RD Lakewood LLC, the Appellate Division found that by failing to mention a banquet hall in a notice for a hotel, the public notice did not adequately describe "the nature of the matters to be considered". The court was not persuaded by the applicant’s argument that the notice adequately described the proposed use because it listed a hotel, and "hotels often include bars, restaurants, and banquet facilities."

This case law will be very pertinent to the Kollel Kodshim application as the notice, whose function is to "ensure the public is properly apprised so they may make an informed determination as to whether they should participate in the hearing or at least look more closely at the plans on file", failed to mention a dormitory, and the Appellate Division in the Lakewood case was not persuaded by the applicant’s argument that the notice adequately described the proposed use because it listed a hotel, and "hotels often include bars, restaurants, and banquet facilities" - similarly, the argument that "the notice states an 'educational building' and such buildings in Lakewood often include dormitories may not withstand judicial review.]

Suggested Further Reading:



LAKEWOOD COMMITTEE COULD ALLOW RESIDENTS OPPORTUNITY TO APPEAL BOARD APPROVALS (includes a primer introduction to Lakewood Township's land use boards)

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Anonymous said...

Did we already cross County Line Road into Jackson? How in the world does Lakewood's Township Committee not permit yeshiva dormitories? It's a real shame that yeshivos are forced to spend money on legal fees for the "crime" of wanting to build a... dormitory! (Gasp!)

Yossel said...

The residents will get very angry if dormitories are permitted in every zone. Do we really want dormitories on every block in town?

Some of these current school dormitories have boys partying and waking the neighbors till 2 and 3 in the morning with no dorm counselor to bring things under control. I'm not even discussing the cigarette butts and other garbage they leave all over the neighborhood. If you want it, then stick it next to your house - not mine!

Besides, the yeshiva currently in litigation has some real chutzpah to stuff another 300+ boys in an area too small for them while barely allowing the neighbors to keep their quiet and privacy. If the hanhala wants to double the size of their student body, they can always sell their current lot to a smaller school and buy themselves a much bigger piece of land somewhere else to build on. The rosh yeshiva can also buy a few houses on his block and put up a big building together with a gigantic multi-story dorm right next to his neighbors. I'm sure they'll be very happy.

What the hanhala has been trying to force upon the neighbors shows a big lack of simple mentschlichkeit.