LAKEWOOD TAXPAYERS ARE FUNDING LEGAL ARGUMENTS WHICH THE JUDGE ALREADY TOSSED OUT

As previously reported here on FAA News (https://www.faanews.com/2022/08/back-in-court-judge-to-lake-terrace-if.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.


So far, pending the outcome of the full lawsuit (which has not yet been scheduled for trial), Ocean County Superior Court Judge Marlene Ford has permitted weddings to continue to held at Lake Terrace but with certain restraints.


Concerts, however, is an entirely separate matter, with its own lawsuit separate from the "banquet hall" lawsuit.


Back 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.


Back in 2005, the building's former owner, Beis Rivka Rochel, received Zoning Board approval only for a "school with assembly hall".


Mr. Shea's letter noted that one week prior, on November 12, 2021, Lake Terrace had hosted a concert for the Bievenida La Vida Bronco with well over 1,000 participants. According to private investigators hired by Clayton, food and alcoholic beverages were sold at the event, and that this was against numerous representations made by the owners of Lake Terrace in their liquor license and renewal applications that the sole business to be operated on the property was to be a "restaurant and catering business".


The letter also stated that "the tight packed crowd severely restricted the crowd's ability to exit the area in the event that any danger occurred", and that there cars parked all over the adjacent private parking lots and roadways, causing increased traffic congestion, and that despite the presence of off-duty police officers hired for the event, there was zero enforcement of Lakewood's zoning and parking ordinances.


The letter concluded with a request that Township officials take immediate action to "investigate these claims to assess whether the above violations are taking place."


Township officials have not responded to this letter. They also did not stop Lake Terrace from hosting an additional concert on November 26, 2021.


In response to this lack of enforcement, 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.


In their briefs they noted that the Zoning Board's 2005 Resolution of Approval for the "school and assembly hall" 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", and that no application for an amended approval was ever submitted to the Board.


Additionally, on August 23, 2010 when the new owners took over operation of Lake Terrace, they applied for, and received, a Certificate of Occupancy for the hall. The CO indicates that it is for the A-3 "assembly hall" use. According to the International Building Code, concert halls require a A-1 use group CO, which Lake Terrace does not have.


The moving documents further claimed that it was "unclear" as to whether or not the property ever received the proper fire-subcode permits required for a concert hall, and therefore, if the concert was allowed to take place the patrons would be placed in possible public safety danger.


The documents further added that by deliberately failing to enforce its own ordinances and land use laws, the Township are is to blame for not preventing "a danger to the general public and the public good".


The legal briefs relied on claims that 1) Plaintiff and the public interest has, and will continue to suffer immediate, repairable harm, 2) Plaintiff is likely to succeed on the merits of its claim against Defendants, and 3) Plaintiff bears the greater hardship if the Preliminary Injunction is not granted.


The motion requested that Judge Ford sign an order "Enjoining the use of the property... from being used as a concert hall in contravention to any existing Approvals and Permits on file for the property."


As one can imagine, it was an extremely tense Thursday and Friday morning as Judge Ford reviewed this new case filing which demanded an urgent hearing, as the major concert had been scheduled to take place the very next night. Judge Ford then transferred the task of holding a hearing to Judge Craig Wellerson.


At the hearing which began 3:30pm Friday afternoon, Judge Wellerson 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 Ciprani wrote to all parties "I have been able to reach the Township. As I stated on the record, 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."


Quizzically, it appears that the attorney and the Committee and Manager who she represents did not place the police department on notice about the cancellation until shortly before the concert's 8pm start time, when Mr. Shea put them on notice. At that point, Lakewood Police officers and Ocean County Sheriff officers were dispatched to shut down the area and turn back the many drivers heading to the now-cancelled event.


On Monday, December 20, 2021 - 10 days following this order, - Attorneys Matthew Fiorvanti and Afiyfa Ellington filed a Cross-Motion seeking to dissolve the December 10th temporary restraints and to denying Plaintiff’s request for a preliminary injunction. 


The cross motion did not assert that Lake Terrace ever received Township Zoning Board approval to operate a concert hall, but rather that "Plaintiff’s challenge to the manner in which the Property is used is without merit and substantially time barred" as "this is not a situation where all of a sudden there has been a concert event taking place that had never occurred before November of 

2021", because actually, Lake Terrace has held live performances "for the local community,"

for over a 

decade. The nature, size and frequency of such events, along with the amount of parking and traffic, have remained consistent during this entire time period. 

Plaintiff has been well aware of this fact, as they have been neighbors of this venue during this entire time, and "the fact that no action had been filed by Plaintiff or anyone else during the past decade

undermines the need for any emergent relief in this case".


The Cross-Motion continues to assert that "there has never been an issue regarding the public safety or any incidents that required police intervention at these live performance events. The police have never been called to address any incident at these concerts or to address any concerns regarding traffic."


Contrary to the email from the Township attorney - sent already on Friday - which asserts that the Township will not inspect the property (which would have allowed the concert to take place) as they do not want to "take a position on the use of this property as that issue is before the court and the zoning board", attorneys for Lake Terrace claim that the Township advised their client (the owners of Lake Terrace) that they refused to inspect the property only because the timeframe given to them, which was less than 24 hours, was simply not enough time to certify that the event could proceed in a safe manner. As a result, the Defendants had no choice but to cancel the upcoming live 

performance scheduled for later that evening.


The Cross-Motion then continues "Lake Terrace sustained injury to its

 reputation and business due to the unfounded restraints on its Property. The last minute 

cancellation of the December 11, 2021 event resulted in the event promoter scrambling to notify the public that there was no concert that evening, which is a risk to the public’s safety. More importantly, the cancellation of the event resulted in much greater threats to public safety and traffic-related issues than the event itself. There were significant parking and traffic issues on the evening of December 11 not because of the concert, but because the people who were to attend the concert had no prior notice of the event’s cancellation."


The Cross-Motion concludes "Finally, the equities weigh in favor of this court dissolving the temporary restraints and

 denying the preliminary injunctive relief sought by Plaintiff. Defendants have been harmed by the temporary injunctive relief and will continue to sustain harm if it has to cancel future events, resulting in loss of business as promoters seek other venues to hold its events and Lake Terrace’s relationship and good will with the community will be negatively affected. The public will not have an adequate space to host community concert events. Finally, Lake Terrace has lost hundreds

 of thousands, and potentially millions of dollars as a result of the cancellation of the Concert. Meanwhile, Plaintiff will sustain no irreparable harm if the events on the Property continue to

occur as it has for over the last decade. This court should maintain the status quo."


Obviously, the Defendants who own and operate the concert hall were unhappy with this Court order, and understandably they filed Opposition - at their expense - to get the order lifted.


Curiously though, Lakewood Township - at taxpayer expense - also filed Opposition, begging the judge to permit concerts to continue and not to order the Township to enforce its very own zoning laws!


On the same Monday, Attorney Jean Ciprani wrote 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."


Ms. Ciprani continued that "until such time as there is a determination either by 

this Court or by the Zoning Board of Adjustment concerning the permitted use of the property, 

relief against the Township directing the exercise of discretion is inappropriate" as it would be "appropriate for the Town to inspect the property and certify 

that the building is safe for a specific number of occupants based upon the permitted uses 

determined by the Court" only if and when "the Court determines that the use of the property as a banquet and/or 

concert hall is permitted".


Ms. Ciprani also submitted a legal brief claiming that in order to obtain a temporary restraining order, a movant must show: (1) he will suffer irreparable 

harm if the injunction is not granted; (2) the underlying legal right is well-settled; (3) a “preliminary showing of a reasonable probability of ultimate success on the merits;” and (4) that 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 Clayton failed to establish irreparable harm or a legal entitlement to relief against the Township, therefore their request for a temporary restraining order is unwarranted.


On Wednesday, December 22, 2021, Attorney Shea submitted a brief in support of enforcing the temporary restraints.


Mr. Shea noted that, as part of discovery they obtained the fire-subcode permits which did appear that the sprinkler system installed would suffice for a school but not for a concert hall with many more people in it at one time.


Additionally, they obtained a report from an architect they obtained to review the outside of the building. The architect noted that the main hall only provides emergency exits for up to 800 occupants to exit safely in case of danger.


Mr. Shea took note that at the hearing, the Defendants claimed that their "big concerts" are simply for "the local community to enjoy food and music", however, an Asbury Park Press article on the cancellation of the event made it clear that many patrons came in from as far away as New York and Pennsylvania.


Mr. Shea further noted that this very same band was scheduled to hold a concert in Texas at an arena with a 7,000 capacity, and that if they were brought to Lakewood it was obviously not for a "small local gathering".


Additionally, Mr. Shea called out Ms. Ciprani's immediate email response as "an unusual statement" as the Court's order did not require the Township to "take a position on this matter", and additionally, the question of the use of the concert hall is not actually before the Zoning Board but rather, there is a Use Variance application pending before the Zoning Board.


Mr. Shea continued to address the Township's attorney Opposition to the temporary restraints in which she again claimed that it would be "inappropriate" for the Township to do an inspection now while the "use of the concert hall is pending before the Zoning Board". Mr. Shea responded that actually, the pending Zoning Board application is for a Use Variance and the Township's position has no grounds, rather the Township is simply trying to avoid making a decision, in fact, even according to Defendants claim - which is in contrast to Ms. Ciprani's email -  that the Township simply required "more than 24 hours" to do an inspection - yet, it's been 12 days since then and the Township has still not bothered to do any inspection of the building!


Mr. Shea concluded that 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, because the Township simply refuses to enforce its own ordinances, (while incorrectly claiming that the "matter is pending before the Zoning Board") the Plaintiff has no other remedy than to seek the Court's order.


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."


The judge signed the formal order on January 4, 2022.


Subsequently, at the January 28th request of Mr. Shea, on February 7th, Judge Ford signed an amended Order to say "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 and Defendants have satisfied any and all conditions contained within such resolution."


This amendment is very important as it makes clear that the Zoning Board approval is not the final step, rather, concerts will be restrained until the Defendants have satisfied any and all conditions contained within such resolution - likely those conditions will include getting DOT approval which, due to the proximity to the airport is a requirement for every non-permitted use.


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.


The owners of Lake Terrace, however do not want the judge to grant this motion. More curiously though, at taxpayer expense, Lakewood Township is joining in the efforts in asking the judge to Stay the case and not issue a final decision, claiming that "there is a pending Zoning Board application on the matter". (Doesn't this argument sound familiar? Lake Terrace also had a "pending" Zoning Board application last November when the case was first filed).


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


Can you guess what the "content" of their motion is?


First Mr. Fiorvanti 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. Fiorvanti 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. Fiorvanti 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. Fiorvanti 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.


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."


Once again, it is understandable that the owners of Lake Terrace are spending their own money to defend their case in court. Curiously though, Lakewood Township - at taxpayer funds - have also jumped in with support asking the judge to stay the case on the basis that "they have a case pending before the Zoning Board".


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".


Interestingly, the Township's attorney already made these very same claims back last December at the hearing to vacate temporary restraints. Mr. Shea already responded to these claims and Judge Ford already tossed away all these claims.


As Mr. Shea clarified back then, claiming that, 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 already - back in December - 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.


Why are Lakewood taxpayers paying for these very same arguments now?


Judge Ford has scheduled oral arguments on the motion for next Friday, September 9th.


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