JUDGE: IS LAKEWOOD TOWNSHIP SHOWING FAVORITISM TO LAKE TERRACE? THEY MAY NOT HOLD CONCERTS UNLESS GRANTED ZONING BOARD APPROVAL. TOWNSHIP FOUGHT STRONGLY TO DENY ORDER.

As previously reported here on FAA News (https://www.faanews.com/2022/09/lakewood-taxpayers-are-funding-legal.html), separate from the ongoing lawsuit regarding Lake Terrace's use of a "banquet hall", there is another lawsuit involving their use of a "concert hall".


At a hearing held on Friday morning in Ocean County Superior Court, Judge Marlene Ford issued an Order that Lake Terrace may not be used for concerts until if, and when, the owners first receive approval from Lakewood Township's Zoning Board as concerts are not a permitted use in the M-1 industrial park zone and the AHZ Airport Hazardous zone which Lake Terrace is split into.


Under a restraining order previously issued in December 2021 by Judge Craig Wellerson, Lake Terrace was already temporarily restrained from hosting concerts. Friday's hearing was held at the request of the Plaintiff Clayton Associates who filed a Motion for Summary Judgement.


The only land use board approval for Lake Terrace is from 2005, when the building's former owner, Beis Rivka Rochel, received Zoning Board approval only for a "school with assembly hall". Te Zoning Board's Resolution of Approval clearly states that if there are any changes to the project as approved, the applicant shall "resubmit any such changes to this Board for review and determination". No application for an amended approval was ever submitted to the Board.


On November 19, 2021, Toms River Attorney Rob Shea, representing Clayton Associates, sent a letter to Lakewood Township officials putting them on notice that Lake Terrace was being used as a concert hall despite never having received Township Zoning Board approval for such use which is not a permitted use in this zone.


After not receiving any response from the Township, on Wednesday December 8, 2021, just 3 days before Lake Terrace was to host a major, 3 band concert which expected to draw a crowd of several thousand, Clayton filed an Order to Show Cause requesting an immediate injunction banning this concert as well as future concerts.


Judge Craig Wellerson held tense oral arguments which began 3:30pm Friday afternoon, just one day prior to the scheduled concert.


Judge Wellerson ultimately ruled that the concert could be held, but only if, prior to 4pm Saturday afternoon, "either the Chief of Police, Public Safety Officer, or Fire Official or a combination thereof” would inspect the building to certify that the building and property were safe for the proposed concert, and to determine the number of people that may safety occupy the premises during a concert, the number of security personnel and procedures necessary to safely operate. If said inspection would not take place by 4pm, "the Township shall immediately notify via email Counsel for Lakewood Township who will in turn notify all Counsel of record... and the concert shall be immediately cancelled and restrained from taking place on this day or any day after".


After the hearing, Attorney Jean L Cipriani who was representing the Township wrote to all parties "the Township is not taking a position on the use of this property as that issue is before the court and the zoning board of adjustment. Accordingly, the Township will not be certifying as to the conducting of any particular use - including the proposed concert... The Court's order regarding cancellation is self-executing."


On December 20, 2021 - 10 days following this order, - Attorneys Matthew Fiorovanti and Afiyfa Ellington of Giordano, Halleran & Ciesla on behalf of Lake Terrace filed a Cross-Motion seeking to dissolve the December 10th temporary restraints and to denying Plaintiff’s request for a preliminary injunction.


Township Attorney Ciprani joined in the efforts, writing to the judge that Lake Terrace has a Use Variance application "pending" before the Zoning Board, and the Township "takes no position on the use of the property beyond that determined by the Court and Zoning Board – nor would it be proper for the Township to make such a determination regarding a pending Zoning Board matter."


Subsequently that Thursday, December 23, 2021, Judge Ford held oral arguments on the matter.


Judge Ford did not buy the Cross-Motion, nor the Township's sincere efforts to assist, and instead ordered that 


"1. Defendants are enjoined from using the property as a concert hall until such time that there is a change in the use authorized by the Lakewood Zoning Board of Adjustment


2. This order shall not apply to the assembly hall use for the purpose of seated events with a maximum of 714 occupants."


Judge Ford signed the formal order on January 4, 2022.


On March 16, the owners of Lake Terrace filed a Motion to amend the restraining order to permit concerts to take place on the property.


Judge Ford held oral arguments on April 14, and noted "what you're asking me to do is to bypass the Land Use boards in Lakewood and to grant your request to conduct the business. And your basis is simply for 1) it's a profitable business, and 2) because we've done it [illegally] all along". Judge Ford then denied the motion.


A Pre-Trial Conference on the case was held on June 12, 2022. At that conference Judge Ford noted that there is no need for a discovery process in this case as the only issue in this case is a legal one, which is whether or not this use a permitted one, and factually, there is no dispute that this is not a permitted use and that the Township simply sat back and permitted the use to continue for so long.


In following up to this observation from Judge Ford, on August 12th the Plaintiff filed a Motion for Summary Judgement which would formally order (as a final order) that concerts are not permitted on this property and the case is closed.


On August 30th, Attorney Matthew Fiorovanti filed Opposition to Plaintiffs Motion for Summary Judgement, and a Cross-Motion to Stay the Litigation pending the outcome of their Zoning Board application.


First Mr. Fiorovanti reminds the judge that "for over 10 years, without complaint from anyone including plaintiff, defendants Lake Terrace have held concerts and other live performance events at the property".


Then Mr. Fiorovanti claims concerts were held "with the understanding that they were authorized under prior land use approvals". The basis for this "understanding" is that Defendants’ predecessors-in-interest at the Property (Bnos Rivka Rochel) received a Zoning Board approval for "a school and an assembly hall", and this term is not defined in the Lakewood Township Land Use Ordinances or in the subject approvals themselves. However, the term “assembly” is defined in Black’s Law Dictionary to mean “[a] group of persons organized and united for some common purpose.” For the past 10 years, Defendants have interpreted such broad term to refer to any event where a group of persons come together for a united purpose of celebrating a wedding, attend a business or professional conference or fundraising dinner, or to enjoy a live music performance.


Mr. Fiorovanti continues that now, after taking no issue with its neighboring property for the past 10 years, Plaintiff comes before the Court and asserts - based on their narrow definition of "assembly hall" and "concert hall" - that the Property is not authorized to be used to host such concert events. However, "because there exists a factual dispute as to what precise uses are permitted at the Property and what uses fall within the scope of the “assembly hall” authorized by the Board, the court should should stay this litigation and deny summary judgment."


Mr. Fiorovanti then indicates that Lake Terrace has submitted an application for use variance and site plan approval to the Board to allow the Property to continue to be used for banquets, weddings, concerts, and all other manner of events and gatherings - not as an admission that it is not permitted to use the Property to host banquets, weddings, concerts or other events, but rather to bring an end to the lengthy and costly litigations instituted by Plaintiff.


Mr. Fiorovanti noted that the Board has scheduled a special public meeting on the application for October 24, 2022. "At that time, or at some time shortly thereafter, if the Board approves the application, the Board will conclusively decide that the Property can continue to be used to host concert events. At that time, this litigation will be rendered moot, as the Board will have resolved the sole issue presently before the court: whether the Property can continue to be used to host concert events, and therefore, instead of the court reaching this question of whether or not the Property can continue to be used to host concert events, "in accordance with applicable principles of judicial economy, the court should stay this litigation pending the outcome of KBS’s application."


Lakewood Township - at taxpayer expense - joined in the efforts on behalf of Lake Terrace.


Attorney Danielle A. Rosiejka, submitted a 13 page Opposition to Plaintiffs Motion for Summary Judgement, all to beg Judge Ford not to order the Township to enforce its own zoning laws!


Ms. Rosiejka admits that "it is undisputed that the subject property is located in a zone in which a “concert hall” is not a permitted use", however, she argues that Mandamus (which would direct the Township to enforce its zoning ordinances) should not be granted here because.... 1) while there is no dispute that this use is not permitted, the Plaintiff has failed to state how the zoning violation "has especially affected the plaintiff", 2) the Plaintiff only sent one letter to the Township 20 days prior to filing this lawsuit, and that simply isn't enough of a basis to establish that their complaint was met with either negligent indifference or willful disregard on behalf of the Township, 3) the is "another adequate form of relief" as "Defendant KBS has applied for a use variance before the Zoning Board and the Plaintiff’s concerns about the property will be addressed in that forum".


Attorney Shea filed a Reply Brief, clarifying that the two arguments which are, 1) the permissibility of the concert use is pending before the Zoning Board and all judicial action should be held until the Zoning Board hears the case and rules on the matter, and 2) the Plaintiff does not need to run to court as they will have an appropriate remedy at the Zoning Board, is all nonsense, as despite whatever use variance relief the Zoning Board may grant in the future, it does not change the fact that this use is currently not permitted, and while the Zoning Board can determine whether or not to grant a Use Variance, they can not determine whether or not Lake Terrace can continue concerts until they obtain a Use Variance. Therefore, the matter is up to the Township to enforce their zoning laws, and if he Township simply refuses to enforce its own ordinances, the Plaintiff does have no other remedy than to seek the Court's order.


Mr. Shea also responded to the claim that "you simply didn't give us enough time before filing the Lawsuit to investigate the issues", that since the filing of the Lawsuit the Township has still not taken any action.


Judge Ford heard oral arguments on Friday morning on the Motion for Summary Judgement and the Cross-Motion to Stay Litigation.


Mr. Shea opened the hearing, staying simply "we want a determination that based on their approvals, they have no permission for concerts".


Mr. Fiorovanti then made the case that "Lake Terrace is the only [stand alone] wedding hall in Lakewood, and of all wedding halls, it's the largest and most luxurious. It's booked solid because it's very meaningful to the Religious Jewish community."


Mr. Fiorovanti reiterated that Lake Terrace has operated for over a decade, without any complaints from the Township or any neighbors, including Clayton which has been their neighbor this entire time. He argued that a Plaintiff can only seek immediate judicial relief if "the harm to the movant, if the injunction is denied, will be greater than the harm to the respondent if the injunction is granted", and being that they sat for all these years with no complaints, they can't come complain now as nothing new is going on now.


Mr. Fiorovanti noted that concerts are already restrained under Judge Wellerson's December Order, and they also already have a pending Zoning Board application so "nothing will change if we stay the case until the Zoning Board hearing", and because there are "questions of fact [as to whether or not concerts can be held at Lake Terrace], it is simply premature to grant Summary Judgement now."


Mr. Shea shot back that Lake Terrace did file a Use Variance application to the Zoning Board, and they did not appeal Board Engineer Terry Vogt's review which states that "concert halls are not permitted in this zone", so obviously Lake Terrace does agree that they do not have approval now to operate concerts, and the judge should grant Summary Judgement.


Mr. Fiorovanti responded "we don't agree that we do not have approval, we only filed an application to the Zoning Board to finally put an end to your costly litigation".


Township Attorney Danielle A. Rosiejka then took the floor. Ms. Rosiejka told Judge Ford that the Township is seeking a Stay on the Litigation simply as this lawsuit has already cost the Township a lot of money and "we want to limit the amount of litigation around this case."


Ms. Rosiejka continued "it is my belief that ultimately the Zoning Board will make some sort of determination and then there will definitely be additional litigation stemming from that determination, so the Township's position is that at the very least, we want this matter to be stayed until the Zoning Board makes its determination simply there should not be contrasting decisions on the use of this property."


Mr. Shea then responded with closing arguments, asserting that "the question before the Court is, can they have concerts, and the answer is "no". Prior to filing this lawsuit, we attempted to get the Township to stop this illegal use. Township officials refused to do any enforcement. Instead of completing restraining their planned concert, Judge Wellerson gave them a chance to hold a concert if the Township would simply do an inspection on the building - and they refused to even do that inspection."


Responding the arguments of "there is a pending Zoning Board application", Mr. Shea asserted "they can ask for future permission to do anything they want. However, they do not have the right to do this now. And this is what the Court should decide and order."


Judge Ford then asked Mr. Shea if there is a legal question on whether the Township is giving favoritism to Lake Terrace by not doing any enforcement.


Judge Ford then wrapped up the hearing by staying, "there is a difference of opinion between the parties whether concerts are permitted under the 2005 Zoning Board approvals. The court previously ordered temporary restraints due to public safety concerns on large, unseated events, and that temporary restraint remains in effect. Concerts may not be held until, and unless, the Township Zoning Board makes a determination that concerts may be held. However, at the same time, the Plaintiff's Motion for Summary Judgement is denied and the Defendants Cross-Motion to Stay the Litigation is granted".


Lake Terrace's Zoning Board application will be heard at a special meeting on October 24th.


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Signs posted by owners of Lake Terrace directing patrons not to park along the adjacent roadways. These signs were placed under Court Order which placed restraints on the use of the property pending the outcome of the Lawsuit.






4 comments:

  1. Regardless that there is a "dispute" between the parties of whether or not an Assembly Hall could include the use of concerts, (as Judge Ford noted), according to Fran Siegel's deposition, once the primary use of the school ceased to exist, the accessory use of the Assembly Hall also should have ceased to exist.

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  2. It certainly appears that the township is - for some mysterious reason - beholden to the owner (max sternstein) of this banquet facility, as they have bent over backwards to help him break the law. There are plenty of other large wedding halls in town. There are also at least 7 more very large (including some larger) and elegant wedding halls coming online very soon. Contrary to the lies which Lake Terrace's lawyer told the judge, there is nothing special about this facility. The township can manage just fine if this place gets shut down. What this proprietor has done is shameful. The site was only approved for use as a girls school with an associated assembly hall for the students to hear speeches. He has no right to quietly remove the school and convert the place to a massive banquet hall while hurting other businesses in the industrial zone, just so he can make a ton of money.

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  3. What happened to my comment?

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  4. It certainly appears that the township is - for some mysterious reason - beholden to the owner of this banquet facility, as they have bent over backwards to help him avoid complying with the zoning code. There are plenty of other large wedding halls in town. There are also at least 7 more very large (including some larger) elegant wedding halls coming online very soon. Contrary to the misrepresentation which Lake Terrace's lawyer told the judge, there is nothing special about this facility. The township can manage just fine if this place gets shut down. What this proprietor has done is shameful. The site was only approved for use as a girls school with an associated assembly hall for the students to hear speeches. He had no right to quietly remove the school and convert the place to a massive banquet hall while hurting other businesses in the industrial zone, just so he can make a ton of money.

    ReplyDelete