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If I asked you to rent your basement with the express stipulation that I would only use it one night per year, you would give me a certain rental price, and if I told you I would have many guests who would use it every night, you would likely give me a very different rental price.

If we signed on the dotted line on the first deal, and then you realized that the reality was the second scenario, you'd probably feel that you got gypped. Right? You'd probably even start thinking about how you can recoup the financial difference from me.

If I then ran to court to ask them to let me release myself from the stipulation on the intensity on the use of the basement, but without needing to pay anymore money, you'd probably try hard to fight me in court. Right?

Unless, apparently, you are the Township of Lakewood and the real losers are their unimportant taxpayers. Apparently, things then work differently.

Back in 2014, Lakewood's Somerset Walk neighborhood brokered a deal with Township officials whereby the Township would sell them a 1.49 acre parcel of land adjacent to their shul, at the extremely reduced price of $12,900 with a deed restriction that, in perpetuity, the land can only be used for parking, open space, and recreation. (This deed restriction permitted the Township to sell the lot for way below property value).

The Township Committee adopted an Ordinance setting the sale for a public auction, and on March 17, 2014, Congregation Somerset Walk was the only bidder, and winner of the auction at $12,900. Township records shown below indicate that Congregation Somerset Walk's purchase of the land with the deed restriction was represented by HOA Board of Directors Member Shuie (Joshua) Schmuckler.

By 2016, the Somerset Walk residents realized that the population of their neighborhood had grown in numbers (likely due to the increase in basements being rented out to additional families), and they decided to expand their shul by converting the Shul's existing parking area into additional shul space and using the deed-restricted property for the new parking lot. (This was legal as the deed restriction permitted this lot to be used for parking).

They received approval from the Township Planning Board for this plan, however, subsequently, the Shul members realized that their proposed plan would require them to move into trailers for several years for the duration of the construction of the shul expansion, and they abandoned this plan, putting the expansion project on hold for the next couple of years.

In 2018, Attorney Miriam Weinstein assisted the shul in consolidating the lot of the existing shul together with the deed-restricted lots. As can be seen below, instead of the copy-pasting the full language of the original deed restriction, the new deed simply states that the deed is "subject to covenants, easements, and restrictions of record, if any." Conveniently, the Description of the Property very innocently states at the end "subject to covenants of record"! [Curious minds wonder if this was an attempt to quietly erase the history of the full deed restriction...]

In 2019, NewLines Engineering drew up new plans for the expansion of the shul. Instead of expanding the existing shul, which would have required moving into trailers during the construction, the new plan was to use the entire 1.49 acre deed-restricted lot for construction of a new shul building and then to demolish the existing shul to convert it into a parking lot.

The Congregation submitted this revised Site Plan to the Township Planning Board in December 2019, and it was posted to the Board agenda for August 25, 2020.

By this point, the HOA had cleared all the trees of the deed-restricted lot and had turned it into a gravel parking lot. Some of the parking spaces were located very close to neighboring lots, causing a breach of privacy to one of the neighbors.

When legal notice of the Planning Board meeting was published, the neighbor retained Attorney Gasiorowski to object to the hearing of the application for the shul building on the lot which was sold with a deed restriction that it may be used only for "parking, open space, and recreation". Due to this objection, the Planning Board wisely decided to "stay far away" and placed the application in abeyance, and it has been held since then.

Earlier this year, shul members decided to propose a "settlement" (albeit a one-way settlement) whereby they will expand the shul by using only a portion of the deed-restricted lot for the shul building expansion, and most of the lot will be used for the parking, which is permitted under the deed restriction.

This "settlement", however, still faced a major bump which was the inconvenient existence of the deed restriction, (which, remember, was placed and agreed to due to the extremely reduced sale price of $12,900 for the 1.49 acre lot - which could be the size of 6 duplex structures!)

Coincidentally, this "settlement" did not include offering to reimburse Township taxpayers the difference in value for land which could be used for a shul building. Additionally, from the Concept Plan which was prepared by NewLines Engineering it appears that the parking would still be close to the neighbors property line.

In April of this year, Congregation of Somerset Walk and the Somerset Walk Homeowners Association, represented by Newark Attorneys Jaimee Katz and Andrew Schwartz, filed a General Equity lawsuit in Ocean County Chancery Court seeking to either remove the deed restriction completely, or at the least to add the shul building as an additional permitted use under the deed restriction.

The lawsuit was filed against the Township of Lakewood and all adjoining property owners.

What, you may be wondering, was the basis for the relief which the lawsuit seeked?

The lawsuit did not deny the existence of the deed restriction - which was clearly agreed to "in perpetuity."

Rather, the lawsuit stated that "Lakewood has experienced unprecedented growth including in the Somerset Walk neighborhood, which has created equally unprecedented demands upon the shul that serves its members. The Shul's growth has outpaced the size and resources that its current facility offers. Consequently, there is an urgent need to expand the Shul's facility to accommodate the community now and in to the future."

The lawsuit continues to claim that simply because the neighbor was "not a party to the deed restriction," nor was the deed restriction a "burden to his property", he should not be able to exercise his right to object to the construction of the shul simply on the basis of the existence of the deed restriction!

The lawsuit notes that when the Township Committee sold the land along with the deed restriction, their Public Land Sale Ordinance noted that the Township's Planning Department "found that the land is best suited for "parking, open space, and recreation", however "circumstances have changed since 2014 when the deed restriction was impressed. Additionally, the deed restriction ... does not presently satisfy a necessary public purpose. The congregants of the shul will be prejudiced if the shul expansion is not permitted to proceed, and the Court should extinguish the deed restriction completely, or at least expand it to permit the construction of the shul."

The attorneys also filed a Motion for Summary Judgement, to allow them to receive an expedited judgement on the basis that "the neighborhood's explosive growth has created a changed circumstance which warrants the need to extinguish the deed restriction."

The motion quoted case law from American Dream at Marlboro vs. Planning Board of the Township of Marlboro, which found that relief from use restriction should be granted when "it is ordinarily clear that the continuance of the servitude would serve no useful purpose and would create unnecessary harm to the owner of the servient estate." The motion argued that the Somerset Walk neighbors feel that not permitting them to expand their shul will cause them "unnecessary harm" and therefore their deed restriction should be lifted.

On May 3, Township Attorney Harold Hensel filed an Answer denying all allegations and asking the Court to dismiss the Shul's request.

Mr. Hensel did not explain very much of his reasoning but he did assert that the Plaintiff "failed to state a claim upon which relief can be granted."

On May 19, Attorney Ron Gasiorowski representing the neighbor filed an Answer arguing that the Shul's request was "improper, unconstitutional, and not within the jurisdiction of the Court", as the deed restriction was considered an easement inasmuch as the Township held back certain rights to the property, and such an easement can only be lifted upon consent of both parties - not simply by filing suit in court, "no matter how much the servient tenant may assert it will be benefited by the extinguishment." Mr. Gasiorowski claimed that if the Plaintiff seeked to properly extinguish their deed restriction, their recourse is to request same from the Township Committee who sold the property with the deed restriction - not to file suit. If the Township Committee was interested in extinguishing the deed restriction, they could introduce an Ordinance to that effect and all interested parties (including the neighbors) could voice their opinions at the public hearing of the Ordinance, without any residents needing to spend money on a lawsuit in court.

Mr. Gasiorowski further claimed that this "meritless" lawsuit and which seeks to cause his client to expend fees to defend and protect the Township's deed restriction was "simply an effort to intimidate him for exercising his constitutional rights when he opposed the presentation of the application to the Planning Board."

Mr. Gasiorowski additionally argued that the Township's sale of the deed-restricted lot was invalid as State Law requires such sales to be offered as both Option A for the sale with a deed restriction and Option B for the sale with no deed restriction (with the prospective buyers submitting offers for both options and the Township then deciding which option to sell), and the Township only offered the lot with the deed restriction.

On May 27th, Somerset Walk's attorney responded fiercely to the claims of intimidation and fees, arguing "if any damages were sustained as alleged in the Counterclaim, which is expressly denied, then such damages were caused, in whole or in part, by the culpable conduct, fault, and/or contributory negligence of other persons and/or entities for which Plaintiffs are not responsible and over which they exercised no control, and any recovery sought by Defendants shall be barred or diminished accordingly. Without admitting that any duty was or could have been owed to Defendants, which is expressly denied, Defendants’ claims are barred, in whole or in part, because Plaintiffs have not breached any legal duty owed to Defendants."

On June 3rd, Mr. Gasiorowski sent Somerset Walk's attorneys a "Safe Harbor" warning, ordering them to withdraw their "frivolous lawsuit" or else he would charge on and file a Motion for Summary Judgement. Somerset Walk's attorneys denies his demand, and on June 15th, Mr. Gasiorowski filed a Motion for Summary Judgement, which quoted case law from the New Jersey Appellate Division which ruled regarding an Asbury Park land sale with a deed restriction that "neighbors have a special interest in the type of building to be [built on the adjacent deed-restricted parcel]", and that "the deed restriction could not be overlooked or waived" as that would be showing favoritism to one party.

The Motion further argued that in placing the deed restriction, the Township held back certain rights to the property (i.e. the right to build anything other then what was permitted under the deed restriction), and by seeking to extinguish those rights, without consent of the Township, the Plaintiff was attempting to do an "eminent domain", however, only governments have such power.

Mr. Gasiorowski further countered Somerset Walk's arguments that they need to expand their shul to accommodate their population growth, and that "open space, parking and recreation" is "no longer a suited use for the land" that actually, open space in Lakewood is at a premium and rapidly diminishing and therefore, keeping the deed restriction in place would provide highly valuable open space which would certainly serve the interests of all Lakewood residents. Mr. Gasiorowski pointed out that the "interests" served by extinguishing the deed restriction would be "the private interests of the private Plaintiffs", whereas the "interests" served by maintaining the deed restriction "extend to the entire public."

Mr. Gasiorowski also asserted that releasing the deed restriction to permit construction of a shul, without the shul paying for the higher value of the property, would constitute a donation of the land to the congregation which would be illegal under the Federal separation of Church and State.

Mr. Gasiorowski also took note that in the Plaintiff's complaint they claim that in 2018 they did their deed consolidation in anticipation of expansion project which had been "years in the making" - which apparently makes clear that already shortly after buying the parcel with the deed restriction, or perhaps even before the sale they already began plotting to expand their shul on the deed-restricted lot.

Finally, regarding the American Dream case which the Plaintiff quoted, Mr. Gasiorowski argued that that case "has no real bearing because it arises from a Planning Board imposed restriction, not a contracted restriction arising by a deed between willing parties."

On July 11th, Township Attorney Mr. Hensel responded with Opposition to Mr. Gasiorowski's motion, arguing that the 2014 sale was valid, and that the Township did not retain an "interest" in the property inasmuch as it was simply "fully sold, but with a deed restriction". 

Mr. Hensel also argued that Township Committee did not have the ability to now lift the deed restriction and therefore, proper jurisdiction is with the Court.

Citing the Appellate Division case quoted by Mr. Gasiorowski, (which decided that courts can not lift restrictions), Mr. Hensel argued that that case was different as it pertained to an easement, not a deed restriction, and therefore the Court does have jurisdiction to hear this case.

Mr. Hensel also differentiated between this case and the Asbury Park case quoted by Mr. Gasiorowski, arguing that there, the developer who purchased the land with the deed restriction immediately seeked to build not in accordance with the deed restriction and because the City turned a blind eye, the Appellate Division overturned the approval saying that that was showing favoritism to the developer, whereas here in Lakewood inasmuch as Mr. Gasiorowski is arguing that Somerset Walk "immediately" after buying their lot started plotting to build a shul on their deed restricted lot, the Township is not saying that they are turning a blind eye and they are definitely permitting the extinguishment of the deed restriction, rather they are Answering the Lawsuit with a denial of all allegations and they are simply leaving the Plaintiff to its proofs.

"The Plaintiff should be afforded an opportunity to try to make that case. Although Lakewood may not agree that the case can be won, the chance to litigate that claim is not time-barred... and the Defendant's Motion for Summary Judgement must be denied," Mr. Hensel concluded.

On July 12th, the attorneys for Somerset Walk filed a Brief and Opposition to Mr. Gasiorowski's Motion for Summary Judgement, as well as a Cross-Motion seeking dismissal of the Defendant's Counterclaim, cross-claims and certain affirmative defenses.

They responded to the claims that "already when they bought the land they were plotting to use it for a shul" and that this seemed clear from their own complaint which stated that they were planning their shul expansion "for a number of years", that actually, their original 2016 expansion plan was simply to convert the existing parking area into additional shul space and to use the deed-restricted property for the new parking lot, (which was not a violation of their deed restriction), and they only scrapped this plan subsequently, once they realized that it would require them to demolish their existing shul and to move into trailers for several years for the duration of the construction which they did not want to do.

They also noted that while only one single Defendant objected to the lifting of the deed restriction "without supplying a reason for doing so beyond their right to object if they so choose", at the same time, "the New Jersey Supreme Court enunciated the standard that governs a plaintiff’s entitlement to extinguish or modify a deed restriction if it demonstrates changed circumstances. Plaintiffs expect to make such a demonstration here at trial, and are entitled to do so".

In essence, Congregation Somerset Walk and the Somerset Walk HOA sought a court hearing to declare their deed restriction extinguished completely, or at the least, to add the construction of a shul building as permitted under the deed restriction. Somerset Walk acknowledged that they purchased the lot with a deed restriction, however, they asserted that their increased density should be a basis for them to claim "changed circumstances" for which they were seeking for the Court to lift or at least modify their deed restriction.

The Defendant, who is one of the neighbors and was represented by Attorney Ron Gasiorowski, argued that the Court does not have jurisdiction to lift such a deed restriction and the only recourse would be for the shul to ask the Township Committee to introduce an Ordinance lifting the deed restriction.

The Township, who was also named a defendant in the lawsuit, argued that they do not have jurisdiction to lift the deed restriction, rather the court is the proper venue for the shul to present their case and while the Township was not going to "actively assist" the shul out of concerns of showing favoritism, they were also not objecting to the shul seeking a hearing in court so they could present their case. [In other words, the Township Committee did not want to have to hold a public hearing on such an ordinance as that would open them up to strong arguments from Mr. Gasiorowski, and they wanted the arguments to take place in court where it would be "someone else's problem".]

On August 10th, Mr. Gasiorowski responded that there was no reason to even a hold a court hearing on the matter. He noted that Somerset Walk is not arguing that it's no longer possible to retain the deed restriction, simply because they can not make such a claim, and that while they claim that their deed restriction should be lifted due to "changed circumstances" which were created by the population growth, in fact, only their "private interests" would be benefitted by the lifting of the deed restriction, and that "need" does not even warrant a court hearing on the matter.

On August 12th, Somerset Walk's attorney responded to this brief by asking the judge to reject it because it was filed 9 days late and it "consists of 14-pages, single spaced. Rule 1:6-5 requires that “[a] reply brief shall not exceed 15 pages, with each page containing no more than 26 double-spaced lines….” The Rule further provides that “[n]o over-length briefs may be submitted without advance permission to do so.” Defendants’ reply brief violates Rule 1:6-5 in that (a) it is not double-spaced; (b) if double- spaced, it would far exceed the 15-page limit; and (c) Defendants did not seek advance permission to file an over-length brief."

Spoiler alert: The judge did not reject Mr. Gasiorowski's brief.

On October 18th, Somerset Walk's attorney tried again, this time writing to the judge "to respectfully request that the Court reject Mr. Gasiorowski's supplemental submission submitted due to his failure to comply with the Court’s explicit directive that the parties’ supplemental submissions (i) may not exceed five pages, and (ii) must be double-spaced. He ignored this same compliance obligation when he filed his reply brief on August 10, 2022, and should not permitted to do so repeatedly to the disadvantage of all other parties".

The judge again did not reject Mr. Gasiorowski's supplemental submission.

On October 19th Lakewood Township Attorney Harold Hensel again advocated for the judge to allow Somerset Walk to present their case at a court hearing.

"Plaintiff herein asserts there are changed circumstances entitling it to seek the Court's removal of the deed restriction. That is for a trial. The Plaintiff would have the burden to demonstrate that the deed restriction is no longer appropriate... If the Plaintiff can prove its case that the deed restriction can be removed, so be it", wrote Mr. Hensel.

At the end of the day, all parties got their wishes - or at least some of them.

Ocean County Superior Court Judge Francis Hodgson granted a hearing on the matter and that was held this past Friday afternoon.

Judge Hodgson denied Somerset Walk's request to lift the deed restriction.

Although in previous court filings the Township had tried to appear to play neutral, saying that "we simply deny all allegations and leave Plaintiff to its proofs", at Friday's hearing, Township attorney Harold Hensel focused more on his argument that "the Plaintiff should have that right to seek in court the lifting of the deed restriction", and that he doesn't even think that the Township Committee has the authority to be the ones to lift the deed restriction.

Curiously, the Township attorney did not even suggest that the matter be settled by Somerset Walk reimbursing the Township the difference in value if the land would have been sold up front for a shul.

Judge Hodgson asked Mr. Hensel if he thinks that the conveyance of the property with the deed restrictions reduced the value of the property.

Mr. Hensel responded that actually, Town officials have been advised when appraising land for sale with a deed restriction "for school use one" that such restrictions actually have more value than land for single family homes. [It is unclear what Mr. Hensel was referring to as in Lakewood, most zoning districts permit both shuls and homes. Additionally, Mr. Hensel did not actually come armed with this property's appraisal both with and without the deed restriction...]

Mr. Hensel also insisted that "the property is landlocked as it is behind the shul and does not have any road frontage so it would only be valuable as a parking lot". [It should be noted that this lot is only landlocked this way because when the Township originally sold it to Somerset Walk, they cut it off from a bigger piece of land which did have frontage on Spruce Street. Additionally, if indeed this lot could only be used for a parking lot and not for a shul building then this lawsuit would not have been filed!]

In response to Mr. Gasiorowski's assertion that one reason that the Shul members should make their deed restriction lifting request to the Township Committee rather than to the Court is so that all members of the public would have a chance to voice their opinion on the matter at the Township Committee meeting, Mr. Hensel responded that the correct venue for this matter is in court, and "the public of Lakewood are having their voices heard through the Township's involvement in this lawsuit!"

Mr. Hensel also claimed that the Township did not include a reverter clause in the deed that would revert the lot back to the Township if the buyer violates the terms of the deed restriction, because they do not have authority to do such a reverting back, rather they can only file a lawsuit against such buyers. [This is super interesting to learn, because, as previously reported here and here on FAA News, the Township has previously sold numerous parcels of land for schools with deed restrictions on the use as well as the timeframe for construction of the building, and those deed restrictions also included reverter clauses!]

The attorney for Somerset Walk attempted to impress upon Judge Hodgson that the deed restriction was not a strict conservation easement which restricts all development of the property, rather, it restricts development to parking but that perhaps this could interpreted even as a 3-story parking garage, and therefore, the shul isn't seeking to go from zero development to a major development but rather from some development (a parking garage) to a shul building. Judge Hodgson did not buy the assertion that the Township Committee contemplated a 3-story parking garage when they worded their deed restriction.

In his lengthy oral Order, Judge Hodgson noted that because the Township did advertise the public land sale of the land as having a deed restriction, if now after the sale the Township lifts the restriction, that could be a legal issue of showing favoritism to one party as everyone else who did not bid on the property was prejudiced inasmuch as they only did not want to bid due to the deed restriction, and this also caused the sale price to be much lower than it could have been if there was no deed restriction advertised.

Judge Hodgson also noted that both easements and deed restrictions affect the value and sale price of property and therefore, the Township's enactment of the deed restriction is considered that they maintain an "interest" in the property.

Judge Hodgson acknowledged that the Plaintiff argues that this "interest" is not held by the Township, however, "the beneficiary of a restriction is generally viewed as having the right not only to enforce the restriction but also to be able to agree to modify or terminate the terms of the restriction, therefore if the buyer of the land wants to get the deed restriction lifted, they need to make that request from the Township Committee", stated Judge Hodgson.

Judge Hodgson noted that the Court's jurisdiction in this matter, had anyone had any legal objections to this procedure, would have been via the filing of a Complaint in Lieu of Prerogative Writs which needed to be done within of 45 days of the Township completing sale of the property. There are certain exceptions to this 45 day rule, however, none of those exceptions apply here, and therefore the Shul's complaint is dismissed.

Judge Hodgson then addressed the Shul's specific request for the Court to modify the terms of the deed restriction to permit expansion of the shul building, due to "changed circumstances" (i.e. the population growth of Somerset Walk).

"It's undisputed that this land sale was with a specific deed restriction 'in perpetuity' that everyone was aware of at the time of the sale. The Court can only modify the terms of a deed restriction when there are 'changed circumstances' which cause that the purpose of the servitude can no longer be accomplished and are no longer feasible", said Judge Hodgson.

"Here, there are no 'changed circumstances' which make it impossible to accomplish the purpose of the servitude, as the purpose of the deed restriction was to preserve open space which can still be accomplished. Increased density is not a changed circumstance, particularly when the deed restriction's whole purpose was to anticipate the density increase by specifically preserving open space for the increased density, and therefore the Court finds that there are no 'changed circumstances' which would permit the Court to seek to modify the terms of the deed restriction", concluded Judge Hodgson.

At this point, the Shul Administration still has the option of settling properly with all neighbors and getting everyone to agree to sign on to their petition which could then proceed to the Township Committee for their approval to lift the deed restriction.

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Chaim Yutz said...

Sounds like it wasn't a great day for Shuie Schmuckler, who by the way, also used to be a (really amazing!) Planning Board member, but he is a great guy who meant well for his neighborhood (even if it meant taking from the rich taxpayers of Lakewood and giving to the poor Somerset Walk HOA).

Yankie S. said...

So... the lawsuit is settled. Now we can all breathe and hopefully get to work on making real peace in the neighborhood by actually to the neighbors to hear what their concerns are. Hopefully our HOA Board can make this right for everyone.

Menashe Weiss said...

The whole issue started because Rabbi Nosson Levine insisted that the shul not move into trailers during the construction. Had he not insisted on that, the 2016 plan which did not require any violation of the deed restriction could have been built by now.

Anonymous said...

讗诪专 专讘讬 讗诇注讝专 讗诪专 专讘讬 讞谞讬谞讗 转诇诪讬讚讬 讞讻诪讬诐 诪专讘讬诐 砖诇讜诐 讘注讜诇诐 砖谞讗诪专 讜讻诇 讘谞讬讱 诇诪讜讚讬 讛' 讜专讘 砖诇讜诐 讘谞讬讱 讗诇 转拽专讬 讘谞讬讱 讗诇讗 讘讜谞讬讱
Maybe Somerset Walk should start paying attention during their Daf Yomi

Anonymous said...

Technically, the 2016 Planning Board approval may have been problematic as it was prior to the 2018 lot consolidation and therefore they were seeking to build a shul on one lot and a parking lot on a separate lot, this would not suffice for parking for the shul which needs to be on its own lot, and, additionally, the principal use for the second lot would have been for a parking lot which is not permitted as a principal use in this zone. NewLines Engineering should know this.

Only in Lakewood... said...

Newlines has been known to fudge the paperwork or omit critical information in other applications where it would help their clients. If you want to engage with a reputable engineering company, I recommend staying away from Newlines. Their "creativity" crosses the line.

Anonymous said...

To Mrs Weinstein and Josh Schmuckler: Has either of you ever heard of a concept called Ehrlichkeit??

Yitzy Shapiro said...

They have heard of George Washington and his 砖讬讬讻讜转 to the color green

Anonymous said...

Nebach, building a choshuv shul for a choshuve kehilla on stolen premises.