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Bnos Brocha previously filed a Motion in Court seeking to reopen their simcha hall. The motion was scheduled to be decided this Friday.

However, they have now withdrawn this motion, FAA News has learned.

UPDATE: Bnos Brocha has also withdrawn their pending Planning Board application.

As first reported here, in November 2020, after their industrial neighbor Clayton Associates learned that Bnos Brocha rented space to a linen store called Table Linen, LLC, a/k/a La Tableau, without ever having received Township approval for this outside business on school property, Clayton filed a lawsuit seeking to immediately shut down operation of all non-school purposes uses on the property.

Subsequently, Clayton also learned of the existence of Bnos Brocha's simcha hall which also never received Township approval, and they amended their lawsuit to include this additional non-school use as well.

Following an injunction hearing in January 2021, Ocean County Superior Court Judge Marlene Ford signed an order granting injunction restraints against Bnos Brocha from using the Simcha Hall for "any business, non-school purposes", pending the outcome of the lawsuit.

At a subsequent hearing in February 2022, Attorney Howard Lipstein Esq. explained that the simcha hall was still operating as the simcha hall is not "for business purposes", but rather, "Bnos Brocha is a community school for the Religious Jewish community, and the banquet hall is used strictly for religious events by members of the community school".

Judge Ford signed an order that the banquet hall "shall continue.. to be used only for school purposes by defendant Bnos Brocha and/or any successors, vendors, for purposes associated with the school and not for business or commercial use."

Subsequently, Clayton obtained a copy of the simcha hall use agreement which indicates that the school does rent out the hall for a fee - in contrast to the representation by Bnos Brocha's attorney at the February 17, 2022 hearing.

Clayton also obtained a copy of Bnos Brocha's school calendar which indicates that their last day of school was June 22nd.

Clayton's investigative team observed the simcha hall being used on 16 days after the school year ended.

In response, at the end of August, Clayton filed a Motion to Enforce Litigant's Rights, seeking to "immediately cease all activity in the simcha hall until such time as it receives all requisite and unappealable approvals for same".

As the news was previously broken here on FAA News, on September 23rd, just before Rosh Hashanah, Judge Ford granted the Motion and ordered Bnos Brocha to immediately cease all activity in the simcha hall until such time as it receives "all requisite and unappealable approvals."

As the Township at the time did not permit banquet halls in this zoning district, reopening the simcha hall would have required Use Variance relief from the Township's Zoning Board which could be difficult to receive when there is a professional land use attorney opposing the application.

To help fix this problem, as the news was first broken here on FAA News, in October, the Township Committee introduced an Ordinance that would permit banquet halls in schools, subsequently the Planning Board recommended that this be limited to non-residential zones only. As previously reported here on FAA News, the Township Committee last week adopted the Ordinance on final reading.

As previously reported here on FAA News, even before the Township Committee introduced their ordinance, Bnos Brocha filed an application to the Planning Board for approval for their simcha hall (which at the time, the Planning Board lacked jurisdiction to approve), and, shortly after the ordinance was introduced, Bnos Brocha filed a Motion for Reconsideration of their "shut-down order".

Bnos Brocha's new attorney Lawrence Shapiro wrote to Judge Ford:

"As BB’s prior counsel argued to the Court on the return date of Plaintiff’s motion to enforce litigant’s rights, “[t]here is no proof before the Court today, nor has there ever been, that [the school] is being used a catering hall[.]” To that end, he noted that the one-page agreement was “not a catering agreement by any sense of the word” because it lacked crucial information, such as the cost per person, the hours of service, and the cost for additional hours.

"Moreover, BB provided a certification disputing many of the assertions in Plaintiff’s motion, particularly the claim that the school was being used as a commercial facility open to the general public for profit. Among other things, the certification of Shraga Zeldes, the president of BB, stated that BB has “never been notified by the Township of any violations of any ordinance or approvals granted to Bnos Brocha by the Township.” In addition, he certified that “[t]he use of Simcha Hall by Bnos Brocha is not for commercial purposes but solely to provide for the needs of the school community to hold religious events such as bar and bat mitzvahs which include a small reception following such events.

Finally Zeldes asserted that Simcha Hall “does not advertise nor does it seek business from the public, and its only function is to the immediate religious community” and “is not set up to make a profit[.]”

In the face of competing versions of events, the Court should have held a hearing to determine whether BB had breached the injunctions.  It was not appropriate to decide a factual dispute – whether BB had used the school for a nonschool-related purpose – in the context of oral argument on a motion. By crediting the certifications of Plaintiff and its private investigator and discounting the certification of Mr. Zeldes, the Court made a credibility determination without the necessary information. Among other issues, Plaintiff raised concerns about parking, which the Court appeared to agree with notwithstanding the fact that there is no ban on street parking in the relevant area. Moreover, there is an issue as to whether the use of the banquet hall is a permitted accessory use, which would moot Plaintiff’s arguments that same is not permitted." The letter then noted that the Township Committee is proposing an ordinance which would permit banquet halls in schools and that Bnos Brocha has already submitted an application to the Planning Board on the assumption that this ordinance will get passed.

Bnos Brocha originally sought a court hearing for November 18th - prior to their November 29th Planning Board application hearing and prior to the Township Committee's December 8th meeting date.

Prior to November 18th, Attorney Rob Shea representing Clayton Associates wrote to Judge Ford, seeking an extension of time on the Motion as "the parties were in settlement talks". Judge Ford granted an extension until this Friday December 16th.

Additionally, Bnos Brocha's Planning Board hearing was postponed from November 29th to next Tuesday, December 20th.

Clayton Associates and Bnos Brocha have now signed a settlement agreement wherein Bnos Brocha acknowledged that they never have received any Township approval for their simcha hall and that, in accordance with the Court Order of September 23rd, "to be clear, Bnos shall not use the Property to host events... or in any way utilize the Property as a catering/banquet facility, whether for school or for non-school related purposes, absent Bnos obtaining all non-appealable approvals and permits for such use."

The consent order does stipulate that their simcha hall will remain completely shut with the exclusion of hosting certain school-related events, including their upcoming Chanukah party, and at these events parking will be permitted along one side of the road only and there will be parking security enforcing the parking.

Along with signing this consent order, Clayton Associates has completely withdrawn their lawsuit, with the stipulation that they can immediately run back to Court to Enforce Litigant's Rights if Bnos Brocha does use their simcha hall.

What this means is that Bnos Brocha will not seek Court approval to reopen prior to receiving Planning Board approval (and completing Resolution Compliance) as well as building inspections and a Certificate of Occupancy from the Construction Official, however, the timing of all this remains to be determined.

Their Planning Board hearing is currently scheduled for next Tuesday December 20th, however, their legal notice published on December 2nd erroneously indicates last month's date, so their hearing will likely get postponed until after they renotice...

UPDATE: Bnos Brocha has now also withdrawn their Planning Board application.

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1 comment:

Simcha Steinberg said...

They are playing 2 games:

1) By presenting to the Planning Board now they would open themselves to litigation that the ordinance was only adopted for their benefit. They want to avoid this mess.

2) They want to wait until after the 45 day timeframe to sue in court to overturn the ordinance passes. If they present to the Planning Board now, Rob Shea will seek an injunction in court against the ordinance. By withdrawing from the Planning Board they are hoping to calm down Rob Shea from suing against the ordinance, and then they will return to the Planning Board after the 45 day time limit.