Back in November 2019, Lakewood Township's Planning Board approved a General Development Plan for construction of 257 duplexes (514 units, 1,028 families, 2,056 cars) on the current Eagle Ridge golf course on Cross Street.
This development, which was previously embattled in numerous lawsuits, is now a major step closer after having recently settled its final lawsuit.
In 2017, the GDMS companies was formed to purchase this golf course which was constructed in the late 1990's by the Kokes family who developed the adjacent Fairways senior development. The purchase price of all the parcels totalled $20 million. The Augusta company was then formed as the developer of the planned development named “The Parke".
While The Parke purchase was under contract, Lakewood Township was in the process of its 10 year reexamination of their Master Plan.
Prior to adoption of the new master plan, the golf course was zoned to permit residential dwelling units, but only for age-restricted housing.
On December 7, 2017, Lakewood's Township Committee adopted its Master Plan, which among other items, lifted this age restriction. The master plan conditioned this zone change, as well as all zone changes which would result in an increase in density, on our State and collector roads including Route 9 and Cross Street getting widened to ease traffic congestion.
• After purchasing the properties, GDMS applied to the NJDEP for prerequisite CAFRA and Freshwater Wetlands Protection permits to construct 936 homes plus 936 basements. Fairways opposed the application. On August 3, 2017, DEP denied the application. GDMS challenged the denial. GDMS and DEP entered into a settlement that provided for DEP to publish a notice of intent to settle and issue approvals to GDMS for development of its property, a thirty-day public comment period, and submission of agreed upon plans to Lakewood and interested parties that previously commented on GDMS's application. The stipulation provided that DEP would issue the approvals following the public comment period unless any comments showed that the decision to approve the development was based on incomplete or inaccurate information or violated DEP regulations. Fairways submitted comments on the settlement during the public comment period.
During the NJDEP permit process, the Fairways members filed a request that the DEP conduct dispute resolution proceedings with GDMS over its development.
On August 29, 2017, the NJDEP formally declined to engage with the Fairways in any such proceedings.
On January 11, 2018, the NJDEP issued an approval to GDMS which authorizes the construction of 517 residential units plus 517 basement apartments, five community center buildings, a clubhouse facility, retail buildings, and other associated improvements. The Permit also requires that GDMS record conservation restrictions related to vegetative cover requirements and critical habitat for protected species.
Fairways did not file a notice of appeal challenging the Permit, however, on February 15, 2018, Fairways filed an adjudicatory hearing request with the NJDEP, challenging the issuance of the CAFRA permit to GDMS, on the basis that the permit conflicts with certain provisions of Lakewood municipal land use ordinances, earlier municipal approvals for GDMS's planned development, and CAFRA's implementing regulations. Fairways also argued that the planned development of the golf course property requires additional permits and conflicts with prior CAFRA approvals issued with respect to the development of the Fairways community. Fairways contended that the approval of its development was conditioned on the golf course property remaining open space and that the Permit allows GDMS to use Augusta Boulevard for access to its proposed development, contrary to the terms of the existing easement.
GDMS opposed the application, arguing Fairways lacked standing to request a hearing and that its substantive arguments were meritless. It also stated that it did not intend to use Augusta Boulevard for access to the development.
DEP denied Fairways' request, stating that the Fairways had no particularized property interest in GDMS property or its golf course sufficient to challenge the DEP's decisions. DEP's written decision noted that Courts have consistently held that proximity or any type of generalized property right shared with other property owners such as recreational interests, traffic, views, quality of life, and property values are insufficient to demonstrate a particularized property right required to establish third party standing for a hearing.
The NJDEP also decided that, in regard to other arguments asserted by the Fairways such as “open space” or “common space” arguments, that it deferred to the Township regarding the interpretation and implementation of zoning laws, as such matters are within the “exclusive jurisdiction” of the Township.
Following this final agency decision Fairways filed two separate appeals to the Appellate Division.
1) The Fairways filed Appeal A-3561-18 (the “first appeal”) with the Appellate Division, challenging DEP's refusal to grant them an adjudicatory hearing on the issuance of the permit, arguing that they do indeed have a particularized interest in the issue even though their property is only "adjacent" to the golf course.
The two-panel judge held oral arguments on April 19, 2021.
The court tossed out Fairways' appeal, noting that neither the CAFRA nor the FWPA provide a third-party with a statutory right to appeal a permit issued to an applicant by the DEP. The court agreed with DEP's determination that Fairways does not have a particularized property interest sufficient to create a right to an adjudicatory hearing as they do not own the property that GDMS seeks to develop.
2) On March 14, 2019, the Fairways also filed Appeal A-2980-18 (the “second appeal”) with the Appellate Division, challenging NJDEP’s decisions regarding the GDMS property.
New Jersey's CAFRA regulations require DEP to adopt regulations for determining impervious cover limits and vegetative cover percentages for sites in coastal development areas designated as a CAFRA center, core, node, coastal planning area, coastal fringe area, or coastal center.
Previously, the golf course property was in a coastal fringe area subject to a maximum five percent impervious coverage (which precluded many houses from being built).
At some point, Lakewood Township submitted to the State Planning Commission (SPC) for endorsement of a development plan designating CAFRA centers, cores, nodes, and other planning areas in the township. The plan reflected new and changed boundaries for the various CAFRA designated areas.
As part of this process, the Township changed the boundaries in the plan to put a portion of the golf course property in a CAFRA suburban planning area with an impervious cover limit of thirty percent, and a portion of the golf course property in a CAFRA node with an impervious cover limit of eighty percent. (These changes allowed for denser development of the golf course property).
The SPC endorsed this plan effective December 7, 2017.
However, on April 6, 2018, DEP rejected this endorsement, due to their determination that Lakewood had "not adequately addressed its existing and projected needs for public potable water supplies", noting that the township's Municipal Utilities Authority (MUA) "is unable to provide service to new projects seeking CAFRA project approval in [its] service area and does not have provisions in place to ensure adequate public water supplies to accommodate the projected growth envisioned by the Township."
Subsequently, the MUA entered into a contract with New Jersey American Water to purchase additional water, and then, on February 4, 2019, after review of a revised water supply plan, and Lakewood's responses to its comments, DEP formally accepted the SPC's CAFRA development area boundary changes for Lakewood (including the increased density for the golf course).
The Fairways did not filed an appeal to DEP. Rather, on March 14, 2019, they filed an appeal directly to the Appellate Court, arguing amount other things that the changes to the State Plan Policy Map issued by the SPC are inappropriate due to financial conflicts of interest by Township Committeeman Meir Lichtenstein who advocated for the change.
The two-panel judge heard oral arguments on April 19, 2021. On June 22, 2021, they released their decision in favor of DEP.
The court found that their "review of a final decision of an administrative agency is limited and we will not reverse such a decision unless it is "arbitrary, capricious, or unreasonable, or . . . not supported by substantial credible evidence in the record as a whole... the alleged conflict of interest of a member of the township's governing body are outside of the statutory authority of the DEP when it considers whether to approve the SPC's endorsement of a State Plan map."
• On January 12, 2018, the Fairways HOA, which represents 1,124 property owners, filed OCN-L-71-18 (their "first lawsuit"), an action in lieu of prerogative writ against GDMS, the Township and others, claiming, among several charges that the master plan is the result of "inside dealing" between Township officials and Augusta and GDMS.
The relief sought in this lawsuit includes that a court-imposed “constructive trust” be placed on GDMS property to preserve its golf course as “open space” and forever prohibit development on it.
Ten days after this first lawsuit was filed, Augusta filed OCN-L-147-18 against the Township challenging the road improvements contingency, alleging that the contingency, which does not include a timeframe for completion of such improvements, creates an illegal building moratorium because it is an interim zoning ordinance with an indefinite duration and/or a timed growth control ordinance.
Lakewood Township did not fight the case strongly, and allowed for the road improvements contingency to be struck down by the court on April 25, 2018. The township did not appeal.
Augusta did not certify in its complaint that there was another case (the Fairways case) pending regarding the master plan, so the Fairways members were unaware of it and could not intervene.
More than ten months later, on February 26, 2019, Fairways appealed, arguing that the April 25, 2018 judgement should be vacated, in part because they were not notified by Augusta when their case was filed even though Fairways had already filed their related case. Fairways asserted they did not become aware of the Augusta case, the summary judgment, or Lakewood's decision not to appeal until the Augusta Action was discussed at a January 2019 Planning Board public hearing on The Parke.
On March 15, 2019, the trial court issued an oral opinion denying the motion, concluding among other things that, 1) Augusta didn't notify Fairways about its case simply because they hadn't yet been served Fairway's case, 2) Fairways intervention in the Augusta case is inappropriate as its interests were already represented by Lakewood Township which represented all residents of Lakewood, 3) Fairways case is against the entire master plan, while Augusta's case concerns only the road improvements contingency.
Fairways then filed Appeal A-3228-18 to the Apellate Court, arguing among other things that Augusta's judgment should be vacated because it was "obtained by fraud, misrepresentation, or misconduct" because Augusta failed to amend its case certification (which asks if there are any other party to the matter) specifically to prevent Fairways from seeking intervention.
After hearing oral arguments on September 21, 2020, the 3-panel Apellate Court released their unanimous decision upholding Augusta's judgement, against the Fairways petition.
The court did not specifically address Fairways's argument that the master plan adoption was an "inside job", concluding that that argument as well other arguments "lack sufficient merit to warrant discussion in a written opinion".
• On May 24, 2018, the Fairways filed OCN-L-1268-18 ("the second lawsuit") against Kokes and GDMS, asserting violations of the New Jersey Consumer Fraud Act claims, the New Jersey Planned Real Estate Development Full Disclosure Act (“PREDFDA”), Common Law Fraud and Promissory Estoppel.
The nature of this lawsuit charged that when Fairways homeowners purchased their homes, they were led by Kokes to believe that the golf course was to be constructed "as part of" their development, and that it would always remain a "golf course development".
GDMS immediately responded to the Second Lawsuit with a Motion to Dismiss in Lieu of an Answer, in which they asserted that any potential claims of misrepresentation would only involve the homeowners and Kokes, but not GDMS as they did not sell them any houses.
Instead of curing the deficiencies noted by the Court, (in that GDMS was not involved in any home purchases), between August 22, 2018 and April 2019, plaintiffs in the Second Lawsuit filed four different, proposed amended pleadings and multiple other papers against GDMS. These amended complaints attempted to add the Association as a plaintiff, add individual members of the GDMS Plaintiffs as party defendants.
Ultimately, on May 22, 2019, the Court granted the Motion to Dismiss in Lieu of Answer, and dismissed with prejudice the Second Lawsuit’s fraud, CFA, PREDFDA and Promissory Estoppel claims against GDMS, finding that, despite the several proposed amended pleadings filed, the Second Lawsuit failed to provide a factual basis for its claims against GDMS.
The Kokes defendants produced their purchase offer documents which clearly stated that the golf course is to be retained by Kokes, and that it may not remain as is in perpetuity. The documents also clearly state that the home sale was not to be based on any representations from brochures (which showed nice views of the golf course), but rather, only on the purchase offer documents.
• The Lakewood Planning Board was intially scheduled to begin hearing The Parke application on February 4, 2019. The application was submitted for a total of 566 housing units.
However, that same day, the Fairways filed an Order to Show Cause Application in the First Lawsuit seeking to halt the Lakewood Township Planning Board's consideration of The Parke General Development Plan because their attorney Michele Donato was away for the month and they wanted to halt the Planning Board proceeding until they could be properly represented.
In her stead for the court appearance was attorney Ronald Lueddeke.
Lakewood Planning Board attorney John Jackson had argued against the restraint, saying no one knows how the board would move forward on the application. It is “improper for the court to step in” before the board has even heard the application or sworn testimony.
Ocean County Superior Court Judge Marlene Ford granted a one month stay noting, “there is a substantial impact on the plaintiffs if they are not permitted to participate in a meaningful way tonight... I’m inclined at this point to restrain the hearing for a shortened period of time so it’s not an impact upon the applicant, but secondly to allow the homeowners to, who obviously have an interest in this, to have the opportunity to have a meaningful record developed to affirm their position.”
Subsequently, one month later, on March 4, 2019, Judge Ford denied continuation of this halt and permitted the Board to begin hearing the application.
• On March 18, 2019, after the Planning Board's first public hearing on The Parke, the Fairways filed OCN-C-54-19 (the “third lawsuit”) against GDMS, asserting that The Parke was planning to make use of Augusta Boulevard, which is an easement, contrary to the terms of the existing easement.
This lawsuit did not address any actual grievance or existing controversy. It only seeked declatory judgment to ensure that GDMS does not use this easement in the future.
GDMS responded that they never used their easement contrary to its terms, and that they do not intend to use it in the future when they develop the property.
This lawsuit was summarily dismissed by the Chancery Division on April 1, 2021.
• During the Planning Board's public hearings on The Parke, Fairways presented testimony by Geoffrey Goll, P.E., a stormwater engineer with Princeton Hydro who is highly knowledgeable and reputable.
Mr. Goll's testimony which was based on a review of the Fairways and Golf Course
1996 stormwater report, revealed the extent of discharge from the Fairways residential component to the golf course.
After hearing this testimony and reviewing the 1996 stormwater report revealing the extent of discharge from the Fairways development to the golf course, the Parke engineers revised the plans for the CAFRA Permit and those pending before the Board to eliminate approximately forty units which was needed in order to accommodate the drainage flow.
Ultimately, on November 25, 2019, after 7 hearings totalling over 30 hours of professional testimony from both the developers, and the Fairways who opposed the application, Lakewood Township's Planning Board unanimously granted approval to The Parke at Lakewood's General Development Plan, to build up to 257 duplexes (514 units), community buildings, recreational areas, common space, and storm water management facilities on the current Eagle Ridge golf course.
The General Development Plan approval is only the first step. The development will still require site plan approvals on each of the 5 phases from the board before any construction. The applicant's engineers testified that each phase would be constructed over 1-5 years, with phase 5 being constructed by 2040.
The board imposed the following conditions on the approval:
1. The Boulevard access road going into the development will have 1 entrance lane and 3 exit lanes to mitigate traffic.
2. All roads inside the development will conform to the current Master Plan recommendations, which exceed the state's Residential Site Improvement Standards (RSIS).
3. Before the final certificate of occupancies is issued for phase 1, Cross Street must be widened with a 2-way turning lane all the way between Route 9 and East Veterans Way.
4. Before the final certificate of occupancies is issued for phase 2, a traffic light must be constructed at the entrance to the development.
5. Before the final certificate of occupancies is issued for phase 3, Cross Street must be fully widened at the entrance to the development to 5 lanes.
6. Before the final certificate of occupancies is issued for phase 4, the board reserves the right to require a second entrance into the development (for example, off Faraday Avenue). The board stipulated they may waive this requirement at a later time.
7. Part of each phase's site plan application must include a storm water management plan, as well as a fiscal impact statement showing what the specific phase will cost the taxpayers.
At the conclusion of the Board hearing, Fairway's attorney Michele Donato stated that she plans on appealing this approval.
• On April 17, 2020, Ms. Donato did good on her word, by filing OCN-L-1000-20 (the "fourth lawsuit") in Ocean County Superior Court.
The lawsuit charges that the golf course which was the topic of the General Development Plan (GDP) is actually the open space of the Fairways development (I.e. that the Township required the developers of the Fairways, as part of their development, to include set space for open space, and this golf course is that open space), and that the golf course also serves as the stormwater management feature for drainage from the Fairways development as it is designated as a recharge area for the Fairways development.
As such, by removing the open space and recreation requirements, the GDP renders the Fairways development as non-conforming as to its previously approved GDP.
The lawsuit also charges that The Parke application failed to meet the requirements of findings of the MLUL and the Township planned development ordinance that are necessary for approval of a GDP, including that there were significant defects in the traffic plans, the stormwater management plan, and the unreasonable adverse impacts from the development.
Likewise, the lawsuit charges, the Township ordinances require that a GDP include an environmental inventory including a general description of the vegetation, soils, topography, geology, surface hydrology, climate and cultural resources of the site existing man-made structures or features and the probable impact of the development on the environmental attributes of the site, and all this was lacking in The Parke GDP.
Additionally, the lawsuit charges, the Township ordinances require that a GDP include extensive provisions for a fiscal report describing the anticipated demand on municipal services to be generated by the planned development and any other financial impacts to be faced by municipality or school districts as a result of the completion of the planned development. The fiscal report shall also include a detailed projection or property tax revenues that will accrue to the County, municipality and school districts according to the timing schedule required for the GDP.
The fiscal impacts were required to be thoroughly evaluated. Despite repeatedly requesting the opportunity to cross-examine the author of the fiscal impact study, the Board refused to require the author of the report to testify.
As a result, the GDP did not address many critical fiscal impacts, including, but not limited to, the effect on property values of homeowners in the Fairways, whose yard areas are used to satisfy open space requirements.
The Fiscal Impact report did not account for basement units and used outdated information. The Fiscal Impact Report did not account for the full impact of the proposed development, did not provide a correct family size and did not use comparable information.
The report provided an unreliable estimate of school age children and education costs. The report did not address the cost of inspection of the stormwater management system.
The lawsuit also charges that while The Parke claimed that they were fully conforming and they were not seeking any bulk variances, the Fairways Association presented testimony to show that numerous buildings did in fact require bulk variances.
• Throughout litigation of the numerous lawsuits, GDMS served Fairways with multiple Frivolous Litigation letters demanding they withdrawal of the pleading as having no basis in law.
• In April 2021, while still litigating all the Fairways lawsuits against them, GDMS filed their own lawsuit (OCN-L-920-21) against Fairways, asserting that Fairways was on a campaign against them and all their lawsuits are simply "sham litigation" to hurt their project, but without any merit.
In this lawsuit, GDMS asserted that prior to purchasing the property, they conducted a diligent review of the properties which did not reveal any deed restriction, encumbrance, easement, agreement, contract, contractual provision, ordinance, statute or law which prohibited the planned development or required that the golf course remain as a golf course.
• In August 2021, GDMS and Fairways came to a global settlement, which included a clause that GDMS will continue to operate and maintain the golf course until at least October 2026, and, after that point, if they deem it to be no longer feasible, they will provide the Fairways with 60 days notice prior to ceasing operation.
However, the Fairways continued to litigate their fraud lawsuit (the second lawsuit) against the Kokes family members who developed the Fairways.
Until now. Recently, that class-action case was also settled in court. The Eagle Ridge golf course is no longer embattled in litigation.
The Parke project is now in the process of seeking Ocean County Planning Board approval. It will also require Site Plan approval from the Township Planning Board before any construction can commence.
FAA News notes that noted-Fairways Homeowners Fredrick (AKA Rob) Robinson and his wife Patricia, - who were infamously viciously attacked in the middle of the night after opposing The Parke development - are no longer Fairways homeowners. They just sold their home to a Brooklyn resident for $560,000. The Robinson's purchased the home from Kokes in 2013 for $398,625.
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