MOTION FILED AGAINST YESHIVA TORAS CHAIM'S DORMITORY APPLICATION AFTER THEY REFUSE TO SETTLE WITH THEIR NEIGHBORS

According to their website, "Yeshiva Toras Chaim was founded in 1996 in order to transform incoming students into wholesome bnai Torah. Under the leadership of Rabbi Mendel Slomovits, the Yeshiva has cultivated an atmosphere where young students feel comfortable to advance. Faculty members include some of the finest Torah scholars and astute educators in the Torah World today."

After the Yeshiva's administration refused to heed Ocean County Superior Court Judge Marlene Ford's call for them to settle a lawsuit brought on by their neighbors who are seeking to overturn the Township Planning Board's approval of the yeshiva's dormitory expansion without regard for the privacy concerns expressed by the neighbors, which were caused by numerous variances the Board granted, the neighbors, who are represented by Attorney Jan Meyer, have now filed a Motion for Summary Judgement in the case.

Yeshiva Toras Chaim, located at 999 Ridge Avenue, received its original Site Plan approval from Lakewood Township's Planning Board back on May 21, 2002. The plan at the time was for a single building for the Mesivta and Beis Medrash, with a dormitory for the 12th grade and Beis Medrash.

At that hearing, Attorney Abe Penzer represented that the students are not permitted to have cars and there would be up to 2 school buses bringing the students to Yeshiva.

Aaron Rottenberg, on behalf of the school, further testified that there would be up to 200 students at the yeshiva.

In the spring of 2020, the yeshiva submitted a new application to the Planning Board for a new building on a separate lot which is adjacent to their existing building, for a major expansion of their dormitory and dining room.

The neighbors from the adjoining Ridge Avenue developments attempted to reach out to the yeshiva administration to discuss some concerns with the plans and offer compromises, to no avail.

In July 2020, shortly before the application was first scheduled to be presented at a public hearing to the Planning Board, the neighbors retained Attorney Sean Gertner to represent them in opposing the application.

Mr. Gertner wrote to the Board that dormitories are not a permitted use in the zone under the Township's zoning ordinances, and therefore the Planning Board lacks jurisdiction to hear the application which requires a Use Variance from the Zoning Board. Mr. Gertner noted that the dormitory can't even be considered as an accessory use to the existing school as the new building is proposed to stand on its own lot so it would be a principal use of the lot. Mr. Gertner further noted that it appeared that Board Engineer Terry Vogt agreed with his analysis as Mr. Vogt, in his engineering review letter did not issue a fact finding that the use is permitted under the zoning ordinances.

Due to this pressure, the application was carried.

The application was not brought back to the Board until January 2022.

The application for the 4-story building was submitted as a conforming use, but with seeking a minimum combined side yard setback of 23.57 feet where 25 feet is required, buffer variance relief as no buffer was proposed where a 20 foot wide buffer is required from residential uses and zones, and Parking setback relief where parking was proposed in the buffer and no parking is permitted within any required buffer.

The yeshiva retained Attorney Matthew Fiorovanti of Giordano, Halleran and Ciesla to represent their application at the Planning Board.

In preparation for presentation of the application, the Yeshiva submitted a Statement of Operations which indicated that there are currently 341 students, of which 178 are in the dormitory and 160 are bused on 4 school buses.

The neighbors retained Mr. Meyer to represent them in objecting to the application. Mr. Meyer wrote to the Board that he echos the sentiments of Mr. Gertner's earlier letter, and that he wanted the application to be sent to the Zoning Board for a determination as to which Board has jurisdiction over the application.

Mr. Fiorovanti wrote to the Board that they should consider the application, despite its variances, as an Religious Land Use and Institutionalized Persons Act (RLUIPA) situation as schools are "very important to the Jewish community in Lakewood".

At the public hearing, Mr. Meyer immediately raised the jurisdictional issue that it was his opinion that this dormitory is not permitted under Lakewood's zoning ordinances and he wanted the application to be referred to the Zoning Board for a determination as to jurisdiction.

Planning Board Attorney John Jackson responded by contending that the Planning Board had “been to court on this issue”, because the Board was sued over another dormitory approval, and that the Board has the authority to deem a dormitory as an accessory use.

Mr. Meyer further requested that due to the short number of days since the legal notice was published, the application be postponed so he could have an opportunity to bring a Professional Planner to properly present his case. The Board rebuffed these requests.

Rabbi Shlomo Slomowitz, the Rosh Yeshiva's son testified that there are no plans to increase the number of students or to add a kollel, rather this building is being planned to increase comfort simply for the existing number of students, and just as there is no current parking insufficiency, the expansion will not cause any increased difficulty in finding parking. Rabbi Slomowitz further testified that he "was not part of the school for its original approval and therefore unaware of critical details, but that the original school was built to have Mesivta through Bais Medrash at max capacity and that yeshiva is not at max capacity".

Mr. Meyer responded by bringing to the Board's attention that the Yeshiva has indeed outgrown its current building without approval from the Board - by their own admission they currently have 341 students on 4 buses whereas in 2002 they testified that there would be a maximum of 200 students on 2 buses - and this illegal expansion is what brought them to this situation where they need to expand their dormitory.

A number of neighbors spoke up. They noted that, shortly before the public hearing, the architectural plans were conveniently revised to call the proposed dining room a "study hall / dining room" so it would look more like a "permitted school" than a "non-permitted dormitory".

The neighbors emphasized that they have nothing personal against the Yeshiva administration, rather they have some concerns about the scope of the application as to privacy, height, windows and sound and which seeked a variance to completely eliminate the required 20 foot buffer. They noted that currently, the students make noise late at night which keeps the residential neighbors from sleeping properly. The neighbors presented several compromises as to the specific location of the building that would work better for them.

Aharon Mansour, a local real estate developer testified that his son attends the yeshiva and that he supports the work the yeshiva does. He also testified that "a dormitory is a better buffer for sound because the boys will have more room to play indoors."

After a contentious hearing, with the school's supporters shamelessly booing the neighbors' concerns, the Board voted to approve the application, with conditions that the applicant shall plant two staggered rows of 6-8’ arborvitae at 6’ on center on the east and south sides; the applicant will frost all windows facing neighboring residential properties on not only the new school building but also on the existing school building. The frosted windows will be designed in such a manner that the opening will be restricted so as to not provide visibility onto neighboring properties but will not conflict with fire regulations; the applicant will construct a 12-foot high structure wall around the back and sides of the subject property facing the east and south sides; the yeshiva will not be rented out for any purpose when school is not in session; the basement will be used for storage and all outside storage and containers for refuse and recycling will be enclosed; and the applicant will resubmit this entire proposal for re-approval should there be any material deviation from the terms and condition.

On March 1, the Board memorialized its Resolution of Approval which states: The Board finds that the applicant has met the [statutory] requirements for preliminary and final major site plan approval. The Board recognizes that the granting of the application will not cause any detriment to the zone plan and zoning ordinance, and that the benefits of same outweigh any detriments. Further, the Board recognized that in Lakewood specifically, a dormitory has been found to be an accessory use to a school. By granting the application, there will be no detriment to neighboring properties; there will be no impairment of light, air and open space to and from adjacent properties; there will be no detriment to the public good; and this development plan will not substantially impair the intent and purpose of the municipal zoning ordinance and master plan.

On March 25, Mr. Meyer, on behalf of the neighbors, filed a lawsuit seeking to overturn the Planning Board's approval.

The Complaint in Lieu of Prerogative Writs, filed in Ocean County Superior Court, charges that "it is undisputed that dormitories are not a permitted use in an R-15 zone in the Township of Lakewood. Accordingly, under ordinary circumstances, the construction of a standalone dormitory would require a use variance, which must be sought before the Zoning Board of Adjustment, not the Planning Board. The Planning Board purported to hear the Subject Application on the theory that the dormitory was an “accessory use” to the school building, which would be a permitted use."

The lawsuit takes issue with Mr. Jackson's contention that "we've been to court already on this issue", noting that actually, the previous dormitory lawsuit was settled out of court so the Board does not have any "been there, done that" legal argument.

"Moreover, Attorney Jackson indicated that he had provided a brief he had written regarding this matter. However, upon information and belief, such brief had not been made available to the public or Attorney Meyer, as the Objector’s attorney, in advance of the hearing", the lawsuit asserts.

In addition, the lawsuit charges that the Board refused to grant the objectors a reasonable postponement so they could retain a licensed Planner and potentially other experts to provide testimony about the jurisdiction of the board and to testify as to the plans in its design.

"In fact, Mr. Meyer was asked by the Board why he did not bring his experts to that very same meeting. Good reason was brought to the Boards attention that Mr. Meyer had tried to retain experts for that night but several of the expert he contacted were unavailable and engaged elsewhere that evening. The requests were denied, and the application was “rushed through” thereby limiting the objector’s rights to bring meaningful testimony to the Board and develop the record in this matter", the lawsuit contends, emphasizing that this issue was exacerbated in that, "In response to the neighbor’s concerns of privacy and noise, the Planning Board required, as a condition of approval, that the applicant must construct a 12 foot wall on the back and sides of the Subject Properties. This wall was nowhere in any of the plans submitted, and was added on an ad hoc basis, simply based on discussion with the Planning Board. The Planning Board acted improperly in making ad hoc changes to the published plans as this sort of ad hoc amendment to plans being considered which, of note, requires a specific variance regarding fence height, is wholly improper."

The lawsuit charges that the Board acted improperly as they "did not permit Mr. Meyer to substantively cross examine Rabbi Slomovits, a witness who was presented by YTC in favor of the application. Moreover, the Planning Board improvidently cut off Mr. Meyer during his closing arguments, not permitting him to make further arguments. In fact, at one point during the hearing, due to the Boards eagerness to rush the application through, and close the hearing to an almost foregone conclusion of a vote in favor of the applicant, they almost disallowed Mr. Meyer to cross examine a witness."

The lawsuit also argues that by hearing testimony mainly from Brian Flannery, the applicant's professional planner, and not from a representative from the yeshiva, "The Planning Board based their granting of the Subject Application on the testimony of the professional planner, Brian Flannery. The testimony of Mr. Flannery constituted a net opinion, and should not have been considered by the Board."

All together, the lawsuit charges that "the Plaintiffs have been adversely affected and the Plaintiffs have suffered a manifest injustice created by the defendant, Planning Board’s, arbitrary, capricious and unreasonable application of their planning use powers."

The lawsuit additionally asserts that, "while there is no discussion of the number of classrooms, it is highly unlikely that 25 staff members and 341 students are restricted to six classrooms. Accordingly, YTC’s need for expanded dormitories is a result of their own violation of the 2002 Resolution. Despite this, YTC has never sought an amendment of the 2002 Resolution, and did not notice any such amendment. Moreover, the Planning Board never made any finding regarding the exacerbation of the 2002 Resolution".

The lawsuit seeks a court order "reversing the decision of the Planning Board, as set forth in the Resolution, to deny any and all variances requested by the defendants; attorney's fees; costs of suit; such other relief as the Court deems just and equitable."

The yeshiva, represented by Brian Schoepfer of Giordano, Halleran and Ciesla, and the Planning Board have filed Answers to the lawsuit, denying all allegations.

As first reported here on FAA News, at a Status Conference held on the case about 6 weeks ago, Judge Ford urged Mr. Schoepfer to strongly urge his clients to reach a settlement with the neighbors. Planning Board Attorney Jillian McLeer echoed Judge Ford's words and urged the yeshiva to come to an agreement with their neighbors, noting that the Planning Board would stand by any agreement they come to.

Though the neighbors were forthcoming with settlement suggestions prior to, and during the Planning Board hearing, the Yeshiva Administration has continuously refused to agree to any settlement.

As such, Mr. Meyer has just filed a Motion for Summary Judgement against the Yeshiva.

A Motion for Summary Judgement is filed when there are no issues of material fact. According to Mr. Meyer's court filing, there are "no issues of material fact" as factually, 1) the Board did not have jurisdiction to hear the Application which required a Use Variance before the Zoning Board; 2) the Board acted arbitrarily and capriciously in denying
a requested adjournment of the Subject Hearing, such that the Objectors could obtain an expert; 3) There was no notice or findings regarding an exacerbation or increase in the use as per the 2002 detailed Resolution.

"Given that there is no questions of material fact that all such reasons apply, the Court should grant this motion, vacating the Subject Resolution" wrote Jonathan L. Leitman, Esq. of the Law Offices of Jan Meyer & Associates.

The Motion hearing is currently scheduled for December 16th. No Opposition has yet been filed but will likely be filed in the coming weeks.

If this Motion is granted, there will be no need for a full trial, as this Planning Board approval will be overturned. If the Motion is denied, then the case will continue to trial which will take another couple of months.

The outcome of this motion will set the stage for the legality of the Planning Board continuing to approve dormitories as an accessory use to a school.

Mr. Meyer is currently representing neighbors against Kollel Kodshim's Planning Board application which includes a dormitory. As previously reported here on FAA News, that application hearing has been postponed until November 29th.

Last year, Mr. Meyer was successful in getting Judge Ford to toss out a Lakewood Township Zoning Board approval of a Use Variance for homes on undersized lots on Spruce Street after the Board refused to postpone the hearing so the neighbors could have the opportunity to retain their own engineer to review the plans.

FAA News notes that, as previously reported here on FAA News, when, back on February 4, 2019, the Fairways HOA filed an emergent Order to Show Cause to restrain the Lakewood Planning Board from beginning to hear The Parke application on a night when their attorney was unavailable, Judge 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... to allow the homeowners... who obviously have an interest in this, to have the opportunity to have a meaningful record developed to affirm their position.”

Additionally, as first reported here on FAA News, Mr. Meyer is currently representing a Lakewood resident who is suing the Lakewood Zoning Board after the Board refused to postpone their hearing and approval of a cell tower facility on top of the Senior Citizen resident building on Clifton Avenue and 5th Street, despite health concerns presented by numerous neighbors and despite the neighbors asking the Board to carry the application so they could have the opportunity to bring their own expert to the next Board meeting before they vote on the application.

As recently reported here on FAA News, this lawsuit was recently amended to include additional complaints against Zoning Board Chairman Abe Halberstam.

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