Following exposure on FAA News, Lakewood Township's Planning Board has corrected their upcoming meeting agenda to identify Kollel Kodshim as an "educational facility with a dormitory." On previous meeting agendas Kollel Kodshim was identified as a "synagogue," and there was no mention of any dormitory.
As first reported here on FAA News, Kollel Kodshim, which is currently located in trailers on 12th Street between Clifton Avenue and Lexington Avenue, has filed Application SP 2436 to Lakewood Township's Planning Board for Site Plan approval for a "new three-story educational building with a basement with associated off-street parking".
This is the identification of the application as provided in the legal notice mailed to the neighbors.
The application and legal notice provided to the neighbors do not disclose any dormitory, however the architectural plans do depict a dormitory.
Curiously, the Planning Board's September 20th meeting agenda identified Kollel Kodshim as "a synagogue", and there was no mention of a dormitory. The application was carried to the October 25th public meeting, and then to the November 15th public meeting. Both of those meeting agendas also identified Kollel Kodshim as "a synagogue", and there was no mention of a dormitory.
The New Jersey Municipal Land Use Law requires applicants to provide notice to property owners within 200 feet of the application site, and requires the notice to "state the date, time and place of the hearing, [and] the nature of the matters to be considered".
There is very strong case law that clarifies and strengthens the notice requirement.
In the landmark 1996 case known as Perlmart vs. Lacey Twp Planning Board, the New Jersey Appellate Division found that the purpose of the notice is to ensure the public is properly apprised "so they may make an informed determination as to whether they should participate in the hearing or at least look more closely at the plans on file".
Subsequent to Perlmart, the Appellate Division heard Pond Run Watershed Association vs. Hamilton Zoning Board, where there was a planned restaurant serving alcohol and that was never published in the notice.
As part of the court's analysis of the earlier Perlmart decision, the court noted that traffic and public safety issues associated with a facility serving intoxicating beverages would reasonably be of "heightened concern" to surrounding residents and property owners, and as such, the court found fault in that the notice should have specifically included this use.
In a similar mindset, dormitories have lights on and noise at night and additional cars coming and going at all hours of the day and night, and therefore, this use may be cause for "heightened concern" among neighbors who would have come out to oppose the approval if they knew about it beforehand. As Kollel Kodshim's notice did not include the proposed dormitory use, the notice could be deemed deficient and then the Board lacks jurisdiction to hear the application.
More recently, in the 2019 case known as Lakewood Realty Associates vs. Lakewood Township Planning Board & RD Lakewood LLC, the Appellate Division found that by failing to mention a banquet hall in a notice for a hotel, the public notice did not adequately describe "the nature of the matters to be considered". The court was not persuaded by the applicant’s argument that the notice adequately described the proposed use because it listed a hotel, and "hotels often include bars, restaurants, and banquet facilities."
This Statue and case law is very pertinent to the Kollel Kodshim application as the notice, whose function is to "ensure the public is properly apprised so they may make an informed determination as to whether they should participate in the hearing or at least look more closely at the plans on file", failed to mention a dormitory, and the Appellate Division in the Lakewood case was not persuaded by the applicant’s argument that the notice adequately described the proposed use because it listed a hotel, and "hotels often include bars, restaurants, and banquet facilities" - similarly, the argument that "the notice states an 'educational building' and such buildings in Lakewood often include dormitories may not withstand judicial review.
Following exposure here and here on FAA News regarding this concern, we are happy to report that the Planning Board's agenda for the upcoming meeting tomorrow night now correctly identifies Kollel Kodshim as an "educational facility with a dormitory"!
As previously reported here on FAA News, upon request of Rob Shea Esq who is representing Kollel Kodshim, this application is again being carried to December 20th.
Hopefully, prior to December 20th hearing, the Planning Board will likewise direct Kollel Kodshim to send new legal notices to the neighbors correctly listing the proposed dormitory use.
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