"NOT ALL TRAFFIC IS DURING THE SAME HOUR" ASSURES TRAFFIC EXPERT AS LAKEWOOD ZONING BOARD NODS TO CHESTNUT STREET APPLICATION

Lakewood Township's Zoning Board this week granted Appeal #4229 from SGS Development Project, LLC, for approval to construct both duplexes and undersized single family homes, for a total of 10 units plus basement apartments, on Clinton Avenue off Chestnut Street where only single family homes are permitted.

As previously reported here on FAA News (https://www.faanews.com/2022/06/breaking-news-lakewood-zoning-board.html), back in June, Appeal #4229 was originally submitted for 6 duplexes (12 units) and one triplex building of 3 units) for a total of 15 units.


The parcel is located in the R-20 zone which permits only Single Family Detached Homes on 20,000 sq feet lots. Duplexes and triplexes are not permitted in this zone and therefore required a Use Variance.


Additionally, this original application also required a Use Variance of Density as more units were proposed than the maximum number of units per permitted under the Township's zoning ordinances.


At the public hearing, the developers, who were represented by Attorney Miriam Weinstein and Engineer Brian Flannery, revised and reduced the application down to 7 duplex structures (total 14 units).


This revision eliminated the need for a Density variance, however, it proposed driveways for 8 duplexes directly on Chestnut Street, and Board members opined that was too hazardous for such a busy road.


Several neighbors also testified in opposition to the application.


Ultimately, the Zoning Board voted nearly unanimously to deny the application. Only Board Chairman Abe Halberstam voted in favor of the proposal.


On July 11th, the Board memorialized their denial with a resolution which states that the duplex units previously proposed on Chestnut Street would have “…cause substantial issues on Chestnut Street which already is a busy street. Therefore, safety hazards will result”.


As previously reported here on FAA News (https://www.faanews.com/2022/08/zoning-board-to-hear-reapplication-for.html), following this denial, the developers resubmitted as Appeal #4229a, with a reduced application for 3 duplex structures (6 homes) and 4 single family homes for a total of 10 units.


There are currently 2 single family homes on the 1.856 acres tract.


In response to the Board’s concerns from the June hearing, the application was reduced by replacing the previously-proposed 8 driveways on Chestnut Street for duplexes with 4 driveways on Chestnut Street for 4 single-family homes. These driveways are oversized with turnarounds, eliminating the need for drivers to back out onto Chestnut Street.


The tract is located in the R-20 zone which only permits Single Family Detached Homes on lots sizes of 20,000 sq feet each. As such this tract could permit up to 4 slightly oversized single family homes.


The revised application proposes to downgrade this zone down 4 zones to the most dense R-7.5 zone which permits single family homes on 7,500 sq feet and duplexes on 10,000 sq feet lots.


The 4 single family homes are proposed on lots as small as 10,012 sq feet. The 3 duplex structures are proposed on lots of approximately 10,000 sq feet each, which means that each home will have approximately 5,000 sq feet - 1/4 of the lot size which this zone requires.


This revised application was originally submitted with several bulk variances which would have made some of the lots even smaller. However, at the Board hearing, the applicant's professionals testified that they will revise the final plans to eliminate all of these variances.


With the adoption of the 2017 Master Plan, the Township Committee agreed to rezone this area of Chestnut Street to permit duplexes, but only once Route 9 as well as all of the county-owned corridors throughout Lakewood, including Chestnut Street, are sufficiently widened to improve traffic flow all around town.


As those improvements are still nowhere in sight, a use variance will be required for the non-permitted use of duplexes.


The New Jersey Municipal Land Use Law permits Zoning Board's to grant use variances solely "in particular cases for special reasons". This is a much stricter criteria than just bulk variances which can be granted by the Planning Board if the applicant provides testimony that "the benefits of the deviation would substantially outweigh any detriment".


The MLUL specifically delineates that the Zoning Board may not grant any variance 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."


The MLUL requires an affirmative vote of at least five Board members in order to grant a use variance.


To satisfy the Use Variance criteria, Mr. Flannery testified that this lot is "particularly well suited for the development for which is proposed".


Mr. Flannery further testified that this application fulfills the New Jersey Municipal Land Use Law (NJSA 40:55D-2) which, in the "Purpose of the act", says


"It is the intent and purpose of this act:


   a.   To encourage municipal action to guide the appropriate use or development of all lands in this State, in a manner which will promote the public health, safety, morals, and general welfare;


   b.   To secure safety from fire, flood, panic and other natural and man-made disasters;


   c.   To provide adequate light, air and open space;


   e.   To promote the establishment of appropriate population densities and concentrations that will contribute to the well-being of persons, neighborhoods, communities and regions and preservation of the environment;


   g.   To provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space, both public and private, according to their respective environmental requirements in order to meet the needs of all New Jersey citizens;


(Curiously, Mr. Flannery did not testify that this application also meets the next paragraph which is "h.   To encourage the location and design of transportation routes which will promote the free flow of traffic while discouraging location of such facilities and routes which result in congestion or blight")


Mr. Flannery emphasized to the Board that the Master Plan already recommended that this zone be changed to permit duplexes here, albeit with a contingency of waiting until the collector roads are improved, and once that contingency was appealed and tossed out in court, this application is consistent with what remains from the Master Plan. [FAA Notes, however, that that judicial decision was unpublished and therefore only applies to the Eagle Ridge golf course for which the lawsuit was filed, and not to the entire township.]


Mr. Flannery further noted that that once the collector roads are improved, the Master Plan will allow the 14 duplexes the applicant previously proposed. Therefore, this 6 duplex + 4 singles application is truly "a compromise".


Mr. Flannery made this application even more palpable by noting that as it fronts both Township and County roadways, the developers will pay Transportation Improvement District funds to both governing bodies. These funds are used to help defray future roadway improvements.


(He further warned - but said this was not a threat - that a school would come here if the Board does not approve this application.)


Traffic Expert Scott Kennel then testified as to traffic. He presented the traffic study which was undertaken by his firm, McDonough and Ray Associates.


Their traffic study utilized weekday AM and PM peak hourly counts obtained along Chestnut Street in November, 2021 adjacent to this site. In addition to the existing traffic counts, they also prepared estimates of future traffic generations for the proposed development based on the Institute for Traffic Engineers data, and added in background traffic in accordance with NJDOT Annual Background Growth Rate Table. [All of which are proper resources for tabulating Lakewood traffic].


Mr. Kennel stated that the Chestnut Gardens development already under construction on Clinton Avenue, will have 32 duplex units, and based on his resources he estimates that they will increase 32 trips for the morning peak hour. Board Chairman Abe Halberstam interjected that 32 families upstairs and 32 families downstairs will equal 64 vehicular trips. Mr. Kennel responded "this is what 'my estimated data' tells me. 64 families will general only 32 trips during the morning peak hours. Not everyone leaves home during the same hour."


The traffic study only reviewed the Chestnut Street intersection with Clinton Avenue but not the adjacent Chestnut Street intersection with New Hampshire Avenue.


The traffic study claimed that the peak direction and hour on Chestnut Street is the westbound pm traffic which is at 522 vehicles. Based on traffic from this proposed application as well from nearby approved applications, in 2032 the peak direction and hour on Chestnut Street will be the westbound pm traffic at 598 vehicles.


The traffic study concludes that the site will operate "at acceptable levels... well within accepted traffic engineering parameters".


Mr. Kennel further testified that NJDOT has just recently begun their Route 9 intersection improvements project which will include major upgrades to the nearby Route 9 - Chestnut Street / Cross Street intersection.


Mr. Kennel also advised that Ocean County is planning to upgrade the Chestnut Street / New Hampshire Avenue intersection with a complete redesign which will include modification of the existing jug-handle as well as a new traffic signal at the intersection of Chestnut Street and the modified jug-handle. Mr. Kennel stated that the Ocean County Engineers advised him recently that they have completed the design work for this project and they are waiting for prerequisite state permits before they can bid out the project and they anticipate getting this approval and soliciting bids in the upcoming 2023 year.


Mr. Kennel further testified that the Township is working on completing the Vermont Avenue Extension and that although this project is currently stalled at the State level, once it is complete, along with the county's plan to restripe Chestnut Street to include left turning lanes onto Vermont Avenue, traffic congestion in the area will ease.


The Board then opened the floor for public comments.


One neighbor argued that the 4 driveways on Chestnut Street are unsafe. She also testified that although the "land" may be well suited for the proposed use, (as Brian testified), however, based on what is already developed there, including the numerous schools in the area, the "location" is not able to handle this development.


Another neighbor invited the Board to "come check out Chestnut Street", arguing that most homes on Chestnut Street are single family homes.


Aaron Hirsch, a resident of Chestnut Street, testified that Mr. Flannery's testimony that "this lot is particularly suited for this use" does not meet the criteria for the "particular cases for special reasons" which is required for granting of the Use Variance. Arguing that "traffic reports are not real for Lakewood", he also urged the Board to "wait until traffic improvements are complete and then we will see if the roads can handle this additional development".


Risa Shapiro, who is a part-owner of this application and also a realtor testified that "my understanding is that the neighbors who came here do not live right next door, they live closer to the center of Chestnut Street which is more congested. No one who lives in this area came to oppose." She also added that "our duplexes are conforming."


Board Engineer Dave Magnos responded that the nearest neighbors are on Salem Street and Marlin Avenue and there is no way anyone on Salem or Marlin are within 200 feet away so they were not noticed about this application.


Board Chairman Abe Halberstam then asked "we were once sued, and we lost, for "discrimination" because there were duplexes already on one side of the road and we denied duplexes on the other side of the road, so, as there are duplexes right across the street, do we have any right to deny this application?"


Board Attorney Jerry Dasti responded "that court decision is not binding here, however, the fact that there are duplexes surrounding this property is "evidential" as it shows what the neighborhood is".


Chairman Halberstam then said that he "would condition an approval of this application on waiting until the county actually begins road work on their planned improvements to the Chestnut Street and New Hampshire Avenue intersection, however, as Mr. Kennel already testified, the county anticipates commencing construction next year, and this development likely will not get built before the county commences road work anyways".


The Board then voted to approve the application as presented. Only Member Mordy Gross voted against the application.


The applicant's professionals noted that they will still require Ocean County approval for the driveways on Chestnut Street, and they anticipate receiving that approval as the county already approved driveways nearby.


Fun fact: It bears noting that someone has been concealing the identity of the applicant. If this is indeed the case, under State law the Board may actually lack jurisdiction to hear the application.


According to the New Jersey Municipal Land Use Law, (MLUL, 40:55D-48.1 etc.), when a Zoning Board applicant is a corporation, they must list the names and addresses of all partners who own at least 10% of the corporation.


The application packet which was posted on the Township's website does not include the Certificate of Ownership of Applicant which is typically included in all Planning and Zoning Board applications.


(It is also noteworthy that the application packet as posted on the Township's website for their original application which was heard in June also did not include Certificate of Ownership of Applicant).


The MLUL clearly states (40:55D-48.3) "no... board of adjustment ... shall approve the application of any corporation or partnership which does not comply with this act."


It is possible that the applicant did submit the required Certificate of Affidavit of Ownership to Zoning Officer Fran Siegel, and that for whatever reason, Fran simply did not upload this particular document when she uploaded the rest of the application packet. Either way, it appears that something fishy is going on here.


Additional fun fact: It bears noting that the proposed Single Family Detached Homes are all over 10,000 sq feet, which is bigger than the 7,500 sq feet permitted for single family homes in the R7.5 which is the zone under which the application seeks approval. Why is the applicant proposing oversized single family lots of over 10,000 sq feet when they could get approval to build single family homes on lots of 7,500 sq feet? Perhaps they want to leave open the possibility of returning to the Board in the future, or selling the individual lots to another developer and then they may come to the Board in the future, and again seek approval to build duplexes on the now-approved 10,000 sq feet lots which are oversized for single family homes but perfect for R7.5 standards for duplexes.


As previously reported here on FAA News (https://www.faanews.com/2022/05/trees-lead-to-forest-fires-so-lets-cut.html), the Zoning Board previously tabled an application for 3 duplex structures (6 houses plus basements) on the other side of Clinton Avenue. That application has not yet returned to the Board.


As also previously reported here on FAA News (https://www.faanews.com/2022/09/lakewood-zoning-board-chairman-this.html), just before the Zoning Board was poised to deny an application for a cul-de-sac with 28 duplex homes on Chestnut Street across from Evergreen Avenue, the applicant withdrew the application so as not to get prejudiced


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Previously denied application which included 8 driveways on Chestnut Street




Approved application which was reduced to 4 oversized driveways with hammerhead-turnarounds on Chestnut Street




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