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Back in February, in a welcome response to the call of many neighbors, Lakewood Township's Zoning Board denied an application which sought permission to construct 140 non-age restricted housing units in Covington Village near Belz / Locust Grove where the township only permits construction of age-restricted Congregate housing units.

In response to a lawsuit filed by the developer against the Zoning Board, Ocean County Superior Court Judge Marlene Ford has now remanded the application back to the Board as their Resolution of Denial failed to comply with a State Statue requiring Resolutions to "contain findings of fact and conclusions in each decision on any application for development."

Covington Village, off Locust Street, is bordered by Belz / Locust Grove and another senior living development, Harrogate.

Over 15 years ago, the development was originally approved as 12 buildings with 30 age-restricted units in each building. Adult congregate community is conditionally permitted in this zoning district.

The developers went bankrupt after building only 7 buildings (210 apartments).

Over the years, many of the existing apartments have been rented out, which led to the Homeowners Associations insurance rates to skyrocket. In response, in August 2014, the homeowners adopted a rule which they filed as a deed restriction, prohibiting any rentals.

Subsequently, in November 2014 a new developer purchased the project out of bankruptcy. Their analysis of market price sales in several age-restricted developments around Lakewood appeared to show that it is not currently cost effective to build age-restricted housing. They also planned on renting out the apartments instead of selling them to end-users, which was now prohibited due to the homeowners' deed restriction.

In March 2015 the developer sued the existing homeowners over their prohibition against renting out apartments. In June 2018 the developer and homeowners entered into a settlement wherein the new development would be subdivided so the existing homeowners and the new renters would not share an insurance bill. As part of the deal, the developer agreed to construct a new maintenance building for the existing homeowners and build an 8 foot high fence between the two developments. The settlement agreement included a clause that says that the existing homeowners are required to support the Zoning Board application for the subdivision.

There was just one "small catch". The developer snuck into the settlement agreement that "if approved by Lakewood Township, the new development will be non age-restricted." Technically, by requiring the existing homeowners to support his subdivision he was also conning them into supporting his application to lift the age restriction.

On September 19, 2019 the developer presented an application to the Lakewood Zoning Board to build the remaining 5 buildings (150 apartments), with a subdivision to separate the 2 developments, and to lift the age-restriction on the new development.

Many residents of the adjacent Belz communities were opposed to the plan which would have added many families and associated traffic to this already busy area.

The Board denied the application, with some members opining that they disliked any lifting of the age restriction and some members opining that they mainly disliked the plan for so many apartments and not enough parking and lack of recreational open space.

On February 11, 2020 the developer submitted to the Board a new application with a revised plan of 4 buildings with 35 apartments in each, and a 5th lot for recreation.

The ratio of apartments in each building was increased to provide 140 units in the 4 buildings. Additionally, previously requested parking variances were eliminated and new recreational facilities including a bocce court, a putting green, a par course, a dog park, a pavilion building, and a jogging/bike path were proposed.

The site plans proposed to divide the new development from the age-restricted development by eliminating the connection between Cole Lane and Amy Court by constructing a cul-de-sac type turnaround at the end of Cole Lane. A rolling gate is proposed to provide emergency access between the developments. The age-restricted development would receive a controlled access gate for their residents and only their residents would receive cards to access the gate.

This application was heard by the board on June 29, 2020 and September 14, 2020. The Board received over 200 letters of opposition. The application was ultimately withdrawn because the Board had concerns regarding the manner of separation of project entrances and exits and requested additional green space at the project entrance next to the Covington Village Clubhouse.

The developer returned to the Zoning Board in February 2022 with a revised plan that included completely separating the project entrances and exits, which was accomplished by widening the existing driveways and designating one for each development. The plan was also revised to remove parking in the new development adjacent to the clubhouse to add green space. The plans also converted the eliminated building into a recreational area with a courtyard pavilion featuring a putting green, a bocce court and a dog park.

Ultimately, after multiple hearings on the application, a majority of the Zoning Board members stated that they disagreed with the developers' market analysis and they felt that there still is a strong market in Lakewood for senior housing apartments.

Subsequently the Board adopted a Resolution memorializing their denial.

As first reported here on FAA News, back in April the developer, represented by Red Bank Attorney Matthew Fiorovanti, filed a Complaint in Lieu of Prerogative Writs asking the Ocean County Superior Court to override the Zoning Board denial.

The lawsuit claims that the Board acted unfairly in its proceedings and denial of the application by failing to properly analyze the merits of the application, which is required before a Board can deny an application.

The lawsuit charges that the Board acted "dismissively" towards the application, and more specifically, Board Chairman Abe Halberstam stated "I don't think anyone has an attention span for this application longer than one hour and we just have to move on the calendar."

The suit notes that the neighboring age-restricted development Harrogate was represented by Attorney Joe Michelini who stated no objection, and only questioned if the trees along the border with Harrogate would be cleared, and was satisfied with the response that those trees would not be cleared as they are protected under a conservation easement.

The suit charges that in response, "the Board, inquired, unsolicited, as to whether Harrogate would be impacted if it wished to expand its property... the fact that the issue was even raised by the Board suggests the Board had pre-determined the application."

The New Jersey Municipal Land Use Law provides (NJSA 40:55D-10(g) that "the municipal agency shall include findings of fact and conclusions based thereon in each decision on any application for development and shall reduce the decision to writing.".

The lawsuit asserts that the resolution fails to comply with this Statue as it does not set forth any finding of conclusion of law of any kind to support the denial, it merely states that "Board members offered a motion to approve. The motion failed to receive the 5 votes necessary for a Use Variance, resulting in a denial of the application."

"No findings of any kind are set forth in the Resolution to support the denial or to satisfy a reviewing Court that the Board analyzed Plaintiff's request in accordance with the MLUL and in light of the Township's Master Plan and zoning ordinances. The Resolution does not contain any such conclusion of law for the simple reason that the Board did not engage in any legal analysis... The Resolution is utterly deficient under the applicable law... The Resolution fails to satisfy the minimum requirements under the MLUL and governing case law, and as a result the denial of the Application should be vacated in its entirety," the lawsuit states.

Additionally, prior to, and during the proceeding, which was held in-person, due to the then-Public Health Emergency the Board permitted members of the public to submit comments on the application via email. The lawsuit charges that the Board violated the New Jersey Municipal Land Use Law (NJSA 40:55D-10(d) which requires "the testimony of all witnesses relating to an application for development shall be taken under oath or affirmation by the presiding officer, and the right of cross-examination shall be permitted to all interested parties through their attorneys, if represented, or directly, if not represented, subject to the discretion of the presiding officer and to reasonable limitations as to time and number of witnesses." By accepting public comments via email, the Board eliminated the applicant's right to cross examine those sending in public comments.

Finally, the lawsuit seeks to toss out the denial on charges that during the proceeding the Board members violated the New Jersey Open Public Meetings Act by passing notes to each other, routinely engaging in private sidebar conversations, and reviewing their respective computer screens throughout the meeting.

The lawsuit seeks an Order reversing the action of the Board denying Plaintiff's application, declaring that the Resolution is null and void, directing the Board to immediately adopt a resolution granting Plaintiff's application in its entirety, and for legal fees.

As previously reported here on FAA News, in his Trial Brief, Zoning Board Attorney Jerry Dasti fought back regarding the Open Public Meetings Act violations (i.e. whispering, passing notes), writing that "First and foremostly, that is not true. Second, there is absolutely no proof, not even a Certification, to substantiate these false allegations. Third, if in fact anyone objected to the manner in which the Board members conducted themselves, perhaps they should have mentioned it during the approximate 6 hours of public hearings. No one did. Fourth, since the applicant was represented by a different law firm at the two public hearings, the author of Plaintiff's Brief has no direct knowledge to make up and try to legitimate such a false allegation."

As previously reported here on FAA News, at the big trial held last week, the lack of conclusions of law in the the Board's Resolution of Denial was the hot topic.

Mr. Fiorovanti representing the developer told Judge Ford, "I can't even properly argue that the denial was arbitrary, unreasonable, and capricious because the Resolution is void of any legal basis for the Board to deny our application. At the very least, because their Resolution is lacking, you should remand the matter back to the Board for them to clean up their Resolution. However, if you do only that, after they clean up their Resolution, I'll be back in Court to argue why the denial was indeed arbitrary, unreasonable, and capricious, so I'd rather you simply toss out their denial completely and remand the application back to the Board for an approval."

In response... Mr. Dasti admitted straight up that the Board's resolution was insufficient, and he conceded that the matter could be remanded back to the Board!

Even more interesting, Mr. Dasti attempted to shoot back that prior to the Board adopting the Resolution, the developers' attorney Adam Pfeffer reviewed the Resolution and he should have complained at that time - to the Board - that the Resolution was insufficient.

Mr. Dasti made this same argument regarding a number of Mr. Fiorovanti's other arguments, including regarding his assertions that the Board violated the Open Public Meetings Act by whispering and passing notes, and by accepting comments by email - "they should have put their complaints on the record during the Board meeting".

Judge Ford has now released her decision.

Judge Ford did not dwell on the allegations of Open Public Meetings Act violations, though she did call the acceptance of public comments by email a "technical violation" as this "denied the applicant his due process to cross examine the witnesses."

Judge Ford noted that while the Board did one single vote on the entire application, there were technically two separate applications which were; 1) Conditional Use Variance relief to lift the age-restriction, and 2) Minor Subdivision and Preliminary & Final Major Site Plan with Bulk Variance relief which included a Minimum Accessory Building Side Yard Setback variance of 8.9 feet where 10 feet is required, and a variance for a proposed eight foot vinyl fence, where the ordinance limits fence heights to six feet.

"The bulk variances for the site plan were de-minimus and the Board's denial of them was arbitrary, unreasonable, and capricious as the application did meet the standards of providing the positive and the negative criteria and there will not be any impact to surrounding properties as a result of the granting of those variances. As such, this denial is overturned and remanded back to the Board for an approval."

Regarding the lifting of the age restriction, Judge Ford schooled the Zoning Board on how the Municipal Land Use Law actually works:

The Board argued that the applicant should have proven a "hardship" in order to be granted a variance. 

"Non-age restricted housing is not an inherently beneficial use and it therefore does require a variance. However, this was not an application for a regular Use Variance for a non-permitted use, but rather for a Conditional Use Variance, which is in a case where the use is permitted conditional on certain conditions being met (here, the condition of the use was that it be age-restricted) and that conditions can not be met.

"The Municipal Land Use Law clearly differentiates between the two in that a regular Use Variance (D1) can only be granted "in particular cases for special reasons", however, a Conditional Use (D3) Variance requires much lighter testimony as the use is already permitted and the variance is really only on the "conditions" and therefore this can be granted with "a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance."

"Plaintiff argued that the site is appropriate for non-age restricted and that the Subdivision will settle their insurance lawsuit. It is unknown if the Board found this to be credible as they did not necessarily address that testimony."

"Even though the Board made arguments now why they denied the application, they didn't write those arguments in the resolution. The Board's Resolution is "a bit unusual" at it "fails to state why the Board found troublesome about the application and their conclusions of law which ultimately led to their failure to approve the application."

As such, Judge Ford did not say that the denial was arbitrary, however because the Resolution was faulty she remanded the matter back to the Board for them to reconsider the age restriction lifting request, and then vote, either to deny it or approve it, and then adopt a resolution properly setting forth the reasons and justifications for the denial or approval.

Mr. Dasti clarified that they don't need to hear any new testimony from the applicant, rather they can vote based on the record of the previous meetings. The need now is simply to choose if they want to approve or deny the application solely as it pertains to the lifting of the age restriction (as Judge Ford already overturned their denial of the Site Plan and bulk variances), and to produce a proper Resolution.

Curiously, Judge Ford noted that their original 2003 Planning Board approval contains a condition that they will file a deed restriction that the apartments are only for 55+. It's interesting to see if the Board will opine that they lack jurisdiction to modify a deed restriction and only a Court Order can do such a thing.

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1 comment:

Yisroel Finkel said...

More tax dollars down the drain.

The Zoning Board attorney's contract is now up for renewal.

"Eyes closed" says the board members will keep him.