The Lakewood Township Planning Board has just filed an Answer to a lawsuit which is gearing up to be a very pivotal case which will decide how much latitude the Board has in denying - over traffic safety concerns - applications which the Township Committee has deemed to be "by-right".

The case involves the Board's earlier denial of an application on East 8th Street after the developer refused to install a full-sized cul-de-sac bulb on the long and narrow road, which, in this particular case, is not required by local or state laws.

Back in 2014, the Lakewood Township Planning Board approved a row of houses along East 8th Street. At the urging of the then-Board of Fire Commissioners, the Planning Board stipulated that the developers build a turn-around at the end of block. During Resolution Compliance, the Board Engineer mysteriously turned a blind eye to this stipulation, and permitted the homes to get built despite there being no provision for the required turn-around, hence there is still no turn-around on this road.

In June 2021, Joseph Bitton presented to the Planning Board a new application to build 6 duplex houses on the other side of East 8th Street on the site of the former Greenwald Caterers commercial kitchen.

The application did not include provisions for any turn-around at the East 8th Street terminus which has frontage along this property.

The tract of land contains about 30,000 sq feet of land and it is located in the R-M, Multi-Family Residential Zone District which permits Duplex Housing on lots of 10,000 sq feet. The application seeked variances of Minimum Lot Area as well as Minimum Rear Yard Setback for some of the lots.

In the engineer's review letter provided prior to the Public Hearing, Board Engineer Terry Vogt noted to the Board that there is no turnaround at the terminus of Eighth Street and that "there appears to be room to install a turnaround in the existing pavement." Mr. Vogt recommended as well that the applicant solicit input from the Township's Department of Public Works and the Police Department's Traffic Safety Unit "regarding the need for a turnaround."

At the Board hearing, many neighbors on the narrow and long block took to the podium to demand that the Planning Board not grant approval for these duplexes unless Mr. Bitton provides a full-size cul-de-sac bulb, noting that there were 2 fires on the block over the past few years and it was practically impossible for emergency vehicles to get in and out of the block safely.

In response, Graham MacFarlane, the developers' engineer testified that the New Jersey Residential Site Improvements Standard (RSIS) which governs the rules for cul-de-sac bulbs, does not require a proper cul-de-sac bulb in this case because most of the road was developed prior to enactment of the RSIS in 1993.

Despite this testimony, - due to intense pressure from the neighbors, - the Planning Board denied the application, instead sending the developers back to the drawing board to provide for a proper cul-de-sac bulb.

As this application seeked variances, Mr. Bitton had no legal recourse against the Board.

In September 2021, Mr. Bitton returned to the Board seeking for a "reconsideration" of his previous denial, on the basis that he could have proposed another Site Plan which was "fully conforming" but he felt that the plan (with its variances) which was previously denied was a "better planning alternative".

The "fully conforming" plan included an undersized 20 foot wide by 30 foot deep hammerhead turnaround.

Engineer Graham MacFarlane testified to the Board that this undersized turn-around was the best they could provide unless they replaced one duplex structure with a single family home, which, incidentally is not a permitted use under the Township's zoning ordinances for this "Multi-Family zone" and therefore a Single Family Home would require a Use Variance from the Zoning Board.

"Slight issue" with this "fully conforming" application was that the Board Engineer calculated that although the alternative plan did indeed eliminate the minimum lot area variance, the minimum rear yard setback variances still remained and it was therefore not "fully conforming".

Additionally, the Board Engineer calculated that instead of lying fully within the public right-of-way, the proposed hammerhead turnaround will encroach onto one of the duplex lots and will require an easement to the Township in order to be proposed for public use.

The Board reiterated that they wanted to see a full-size cul-de-sac bulb, and denied Mr. Bitton's "request for reconsideration". The Board also reminded Mr. Bitton to solicit input from the Police Department's Traffic Safety Unit and Fire Chief regarding the need for a turnaround.

Eventually, in April 2022, Mr. Bitton returned to the Board "fully armed". His engineer Graham MacFarlane presented an application for the same 6 duplex units with a plan to provide either a hammer-head turn-around or an undersized cul-de-sac bulb, testifying that either proposal is fully compliant with both township and state standards, even though school buses can only turn-around on full sized cul-de-sacs.

Mr. MacFarlane testified to the Planning Board that the Fire Chief and Police Department's Traffic Safety Unit reviewed the plans; the fire chief stated no preference between a hammer-head turn-around or an undersized cul-de-sac as long as No Parking signs were posted, the Police Department's Traffic Safety Unit stated a preference for an undersized cul-de-sac as there is less illegal parking on undersized cul-de-sac bulbs.

Mr. MacFarlane further testified that this was finally a variance - free application and therefore it should be approved by-right.

Citing these nods of approval from the Township officials, Board Engineer Terry Vogt urged the Board to "settle the matter" and approve the application with either a hammer-head turn-around or an undersized cul-de-sac.

The neighbors again took to the podium to demand that the Planning Board not grant approval for additional duplexes unless Mr. Bitton provides a proper cul-de-sac bulb.

Due to continued urging of the neighbors, the Planning Board again stood their ground, - despite dire warnings of its own professionals - and denied the application.

On May 24th the Board adopted its Resolution of Denial which states:

"While the application represented a conforming subdivision, it is the duty of the planning board to weigh the evidence and to exercise its discretion in the event of significant concerns on the board of the board. 

"The Board ultimately rejected the application on the basis of significant traffic safety concerns regarding the lack of a full-sized cul-de-sac to provide adequate safety in this neighborhood. 

"The Board found that an approval of this application would have significant detrimental effects on the safety of the neighborhood. 

"The Board finds that the applicant’s proposal does not further the purposes of zoning pursuant to N.J.S. 40:55D-2:  

1. The applicant’s proposal is not the best planning alternative. 

2. The proposed development would not secure safety from fire, flood, panic and other natural and man-made disasters.

"Accordingly, the Board hereby denies the applicant’s request for major subdivision approval."

As first reported here on FAA News, following this denial, on July 8th, Mr. Bitton filed a lawsuit in Ocean County Superior Court seeking to overturn the Board's denial of the application.

The Complaint in Lieu of Prerogative Writs filed by Attorney Adam Pfeffer argues that the application was a permitted use in the zone and variance-free, thereby making it a by-right application, and therefore the Board's denial of the application was "arbitrary, unreasonable, and capricious", and the denial should be overturned.

Additionally, the lawsuit also requests that the Plaintiff's own legal fees be reimbursed by the Township taxpayers.

Board Attorney John Jackson has now submitted an Answer to the Complaint denying all allegations. Judge Marlene Ford has been assigned to the case and has scheduled a pretrial management conference for Tuesday, December 6th. All parties must file pretrial memorandum by November 29th.

Lakewood Township's taxpayers will fund the legal fees incurred by the Planning Board to fight the lawsuit. Based on the outcome of the lawsuit, the winning party may have their own legal fees awarded.

If the Planning Board does win this case it would represent a landmark victory for land use boards statewide.

The major legal question will be as to what basis, if any, the Board has, to deny seemingly by-right applications on the assertion that such applications do not "further the purposes of zoning".

Regarding applications with variances, the New Jersey Municipal Land Use Law (40:55D-70) provides that "no variance or other relief may be granted... without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance."

However, for fully compliant applications, the MLUL (NJSA 40:55D-46 b) provides that "the planning board shall, if the proposed development complies with the ordinance and this act, grant preliminary site plan approval."

The New Jersey Supreme Court, in a 1994 case known as Pizzo Mantin Group vs. Twp. of Randolph, declared that, without clear standards established in the local ordinance as to what is prohibited and what is required, board members are not free to unilaterally utilize their own judgment, as that would be an invitation to inconsistency, controversy and arbitrary action by boards, and therefore, unless the applicant fails to abide by the standards in the ordinances, a board has no choice but to grant an application.

In this case law, the State's highest court declared that Board members utilizing their own judgement to make inconsistent decisions is the "antithesis" of the Municipal Land Use Law's intended framework which was that there be consistency, uniformity and predictability in the subdivision approval process.

The New Jersey Apellate Division later expanded on this ruling in a 2001 case known as W.L. Goodfellows and Co. vs. Washington Township Planning Board, where the planning board had denied a site plan application for "lack of an adequate drainage plan" as the application relied upon a drainage easement, which the applicant had not yet secured, to carry storm water across adjacent property.

The Trial Court upheld the Board's denial, however, the Appellate Division reversed that decision, citing the Supreme Court ruling in Pizzo Mantin, and noting that because nothing in the local ordinance required that necessary easements be secured prior to site plan approval, the builder could not have anticipated such a requirement from a reading of the ordinances, and therefore the requirement was one which the planning board imposed without any ordinance authority.

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Anonymous said...

ולאחיו יאמר חזק!

For once, I actually hope that the Planning Board wins this lawsuit!

I am sure that it will be a very uphill battle. However, if the Board is victorious, it will give the Board a lot of latitude to deny applications out of traffic and pedestrian safety concerns.

This will, in turn, give concerned neighbors much more of a reason to attend and get involved in, our land use board meetings, which will, in turn, be mechazek our Planning Board members who will actually be trying their very best.

Not so sleepy Joe said...

I don't know this Mr. Bitton personally, but c'mon man! You are unfortunately shining an unwanted bright light on the dark side of land use development, in a way that "does not advance the purposes of zoning".

ab said...

The board didn't impose this on the first developer, and it's the residents of those homes that are now complaining. Zoning boards are not where they should air their grievances, they should make the Township update the rules. I hope the zoning board loses this. They should be forced to consistently apply the rules, and not ignore those developers that are protected.

Moishe Shmiel said...

Note that the Township's ordinances for this "long and narrow" block permit duplexes but not single family homes!!

Nowhere in Lakewood should duplexes be permitted and single family homes not permitted, especially not on long and narrow blocks!!

The Township Committee needs a major sit down.

Anonymous said...

ab -

You are so wrong. The Board did express this condition on the first developer, but because Lakewood allows all kinds of behind-the-scenes games behind the closed-to-the-public phase of "Resolution Compliance", a wrongful action was allowed to slip through the cracks. What you're preaching is that two wrongs make a right and screw the residents. How shameful of you!

Keep it quiet said...

Just because all the details get ironed out during the Resolution Compliance phase, which just happens to be closed to the public, does not mean that there are shenanigans going on. This is Lakewood, so why would you ever say that??

No need to keep it quiet said...

The Zoning Board requires applicants to bring back actual revised plans prior to the Board voting on the resolution. This way, there is way less room for errors during the behind-the-scenes Resolution Compliance. This application is a great example of why the Planning Board should enforce the same thing and require revised design plans prior to voting on the resolution. No more simply "making conditions" and leaving the actual working out for behind-the-scenes Resolution Compliance.

Anonymous said...

The Goodfellows case is a major lesson as to why township governing bodies seriously need to get their business together and enact proper ordinances to eliminate vagueness and arm their land use boards with the authority to make fair decisions. As the Appellate Division has noted, a Planning Board can not simply enact its own rules.