A lawsuit filed in Superior Court back in April against the Lakewood Township Zoning Board after the Board approved 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, has now been amended to add additional complaints against Zoning Board Chairman Abe Halberstam.

Lakewood Township's zoning ordinances do not permit wireless communication facilities in this zone. Therefore, back in March, the Township's Zoning Board granted a Use Variance as well as Bulk Variance relief to a subsidy of Verizon to permit them to install a cell tower facility on top of the Senior Citizen resident building on Clifton Avenue and 5th Street.

[The BMG Roshei Yeshiva, the Satmar Dayan Rabbi Klein, as well as BMG Senior Posek Rabbi Forcheimer signed letters opposing the installation of this cell tower in Lakewood. Read more here  and here on FAA News.]

Numerous neighbors attended the Zoning Board hearing (without an attorney representing them) and spoke up in opposition to the granting of the Use Variance which would enable installation of the cell tower, citing health concerns due to the proximity of the proposed tower to residential homes.

Attorneys for Verizon counter asserted that the Zoning Board is precluded from considering the health effects of the cell tower, beyond whether they followed FCC guidelines.

In response to this assertion, the neighbors attempted to distribute to the Board articles regarding a Federal appeals court opinion that the FCC, which has not updated their guidelines regarding the standards for cell towers since 1996, has failed to adequately respond to credible evidence, such as from the American Academy of Pediatrics, of the impact of radio frequency radiation on children. The American Academy of Pediatrics has presented credible evidence that exposure to radio frequency radiation can have health impacts and environmental impacts even at levels lower that those permitted under the existing guidelines.

The neighbors implored the Board to table the application to a future date to permit them to retain a professional to better present their concerns to the Zoning Board.

The Zoning Board refused to postpone the hearing, and even to look at the federal court opinion after the Board Attorney asserted the articles were irrelevant because "he is sure there are other articles that say differently."

The Board then voted to approve the Use Variance application.

Subsequently, in April, as first reported here on FAA News, the neighbors retained Teaneck Attorney Jan Meyer who filed a Complaint in Lieu of Prerogative Writs asking the Superior Court asking the Judge to overturn the Zoning Board's decision, arguing that "the Board's refusal to adjourn the hearing, despite multiple objectors requesting the opportunity to secure a expert witness was contrary to applicable law; and was arbitrary, capricious, unreasonable and otherwise wrongful against the neighbors".

The neighbors are also charging that the Board's failure to consider evidence regarding the health and environmental impact of cell phone towers, and relying solely on the FCC standards - despite the Federal Court's opinion that the FCC standards are arbitrary and capricious in failing to support their conclusion to not update their wildly out of date standards, - as well as the Board's utter refusal to even accept and read the printed news article the neighbors attempted to present, was "arbitrary and capricious".

Subsequent to filing the lawsuit, as part of the discovery process of the litigation, Judge Marlene Ford directed Mr. Meyer to obtain a transcript of the Zoning Board proceeding. Upon obtaining this transcript, Mr. Meyer (who was not at the Board meeting as he was not retained by the neighbors), learned of additional specific arbitrary and capricious behavior on the part of Board Chairman Abe Halberstam, and in response, he has now filed an Amended Complaint to add in these additional charges.

"In addition, when plaintiff specifically asked for an adjournment to provide expert testimony before the Board, he was told by the Chairman that if the Board would approve the application, then ”he could sue the Township and go to Court”, thereby also foregoing the opportunity of making a record due to the decision of the Board. Plaintiff, being a pro-se at the time of the Hearing, relied, due to the action of the Board, on the Board’s direction and was incorrectly lead to believe that going to Court would be the time to supplement and bring additional evidence related to the application... The Board violated the plaintiff’s due process rights, as well as acted arbitrarily and capriciously by refusing to consider and allow plaintiff to establish a full and complete record for the Board’s consideration, and as a result of the actions of the Defendant, the plaintiff has been damaged," the Amended Complaint charges.

The Amended Complaint also charges that the only testimony the Board heard from Verizon was presented by their professional contracted experts (and not by actual company members) and "the testimony of such witnesses constituted an improper net opinion, and should not have been considered by the Board".

Additionally, when searching for a court transcriber willing to listen to and transcribe the recording of the Board hearing, the court transcriber complained that they had a difficult time hearing the audio due to the poor quality of the Township's sound and recording system. This delayed the lawsuit's discovery process. Mr. Meyer noted this issue in his Amended Complaint.

"Despite repeated requests and representations made by the Board to the Township, the Township continues to have issues with the recording system resulting in difficulty of obtaining a true and accurate record and transcription of the proceedings... Plaintiff’s due process and other rights were violated by the fact that the recording device was inadequate and continues to remain inadequate despite the repeated known issues brought to the attention of the township. The township, having known about this issue for a long period of time should have corrected such faulty recording system or brought/provided a court stenographer to assure a true and accurate transcript of all hearings. The Board violated the plaintiff’s due process rights, as well as acted arbitrarily and capriciously by such conduct. As a result of the actions of the Defendant, the plaintiff has been damaged", the Amended Complaint alleges.

The lawsuit seeks for a Court Order "Reversing the decision of the Board of Adjustment, as set forth in the Resolution, to deny any and all variances requested by the defendants; Attorney's fees; Costs of suit; and such other relief as the Court deems just and equitable".

The Defendant's, the Zoning Board and Verizon will now have 35 days to file an Answer to the Amended Complaint.

This lawsuit was filed by Jan Meyer, a frum and famous Land Use attorney and expert from Teaneck. Last year, Mr. Meyer was successful in getting Ocean County Super Court 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.”

Mr. Meyer is also representing neighbors of Yeshiva Toras Chaim on Ridge Avenue who are suing 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. As previously reported here on FAA News, Judge Ford recently urged the Yeshiva's administration to settle the lawsuit before the Motion for Summary Judgement is filed. Unfortunately, despite the neighbors proactively suggesting minor building changes, the Yeshiva administration has not been willing to settle the matter out of court, and Mr. Meyer is expected to file a Motion for Summary Judgement on this case in the coming week.

As previously reported here on FAA News, Mr. Meyer is also representing neighbors who are opposed to an application pending before the Lakewood Township Planning Board which would add an additional 500 cars to the Cross and James Street traffic.

As first reported here on FAA News, Mr. Meyer is also representing neighbors who are opposed to Kollel Kodshim's application pending before the Lakewood Township Planning Board which they attempted to present even while waiting for a psak from Beis Din for which the Yeshiva summoned the neighbors after the neighbors complained to the Township about their illegal trailers. Mr. Meyer was successful in getting that Planning Board application postponed and it is currently on the November 29th meeting agenda.

Related story: Citing the pending Yeshiva Toras Chaim litigation they are fighting on the dormitory matter, Lakewood Planning Board members recently pushed back on hearing two applications, including Kollel Kodshim's application, as they included yeshiva dormitories. Read more here on FAA News.

Additional related story: Verizon also has a pending Zoning Board application for construction of a permanent cell phone tower on Georgian Court University's campus adjacent to BMG's proposed expansion. The Board heard initial testimony on the application at their May 2nd public hearing, which was packed with residents who were objecting to the application, and the application has been carried since then. As previously reported here on FAA News, that application is possibly being carried and not presented due to Mr. Meyer's pending cell tower lawsuit. Mr. Meyer's newly filed Amended Complaint will further delay the installation of the (and possibly the filing of additional applications for) cell tower.

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Anonymous said...

The issue isn't so much that the Board approved the cell phone tower, it was a lot more about the arrogant way Chairman Abe Halberstam ran the meeting and waived away numerous neighbors who attempted to convey their concerns about the proposed tower. Numerous neighbors also spoke up at the following Township Committee meeting to plead for them to grab a rein on Halberstam. Halberstam's utter arrogance - which was likely contravene to the law - is what brought this lawsuit as well as its now Amended Complaint.

Anonymous said...

Special mention goes to Board Attorney Jerry Dasti, who gets paid the big bucks to be the Board's LEGAL counsel. It's his job to stop the board from going off the rails especially in applications such as this one.

Anonymous said...

Did Halberstam get pay back for this speedy approval? Just asking because that may have happened once or twice before...