Lakewood developer Besadar Holdings is suing the Township's Planning Board for denying his application at the urging of the neighbors. Those neighbors recently asked the Court to permit them to intervene in the lawsuit to join the Planning Board in fighting back against Besadar Holdings.

Besadar Holdings has now preempted a ruling by the judge by consenting to the intervention.

As first reported here on FAA News, back in June, the Lakewood Township's Planning Board very uncharacteristically denied a "mostly conforming" application for 9 new single family homes on a cul-de-sac road along the southwest side of Fourteenth Street, southeast of Curtis Lane.

The application which was filed by Solomon Halpern of Besadar Holdings, was represented by Attorney Robert C. Shea, Esq., and Engineer Brian Flannery.

There are many trees on this secluded 3.2 acres site which was the former home of infamous land owner Sydney Krupnik.

Many neighbors, represented by Attorney Ron Gasiorowski and Engineer Gordon Gemma, opposed the application citing traffic safety concerns. They also spoke highly of their "unique neighborhood" which by and large does not have basement apartments. They also noted that there is no stopping or standing along their narrow section of Fourteenth Street, so if there is insufficient internal space for all the cars to be parked, there will be no other place for them to park.

When the Board questioned the applicant whether or not he proposed to build basements, he responded "perhaps yes, perhaps no". The applicant's professionals flat out denied a compromised proposed by the Board to approve the application with an stipulation of a deed restriction prohibiting basement apartments.

The application proposed a standard 32 foot wide road pavement, curb and sidewalk, 4 parking spaces per home, and a stormwater management system on-site and within the cul-de-sac, as well as extensions of utility mains, landscaping, and street lighting.

Each of the single family homes were proposed on 12,000 sq foot lots, as is permitted in the R-12 Single-Family Residential Zone District. As such, no variances were requested, making this technically a "fully conforming application". However, there were some minor submission and design waivers requested which the Board weighed heavily on:

Lakewood Township's Unified Development Ordinance requires developers to submit architectural plans with a minimum of 4 basic house designs for proposed residential development consisting of 7 to 15 dwellings. The applicant did not submit the required architectural plans.

In response, the applicant’s engineer indicated that the proposed lots in this subdivision will be sold to individual buyers who will build custom homes and therefore it's not possible to submit architectural plans now.

Applicants are also required to provide an Environmental Impact Statement. In response, the applicant’s engineer claimed no environmental constraints are present on site.

The application sought a design waiver from providing non-radial lot lines. The Board Engineer recommended that the Board should grant this design waiver because the non-radial lot lines have been designed such that 2 of the proposed lots will meet the minimum area and width requirements, while keeping stormwater management facilities entirely on a single lot.

The application also sought a design waiver from proposing street trees along the entire Fourteenth Street frontage. The applicant’s engineer indicated that they are requesting this design waiver because their proposed stormwater management system will be in the way of the required street trees.

Additionally, the application sought a landscaping waiver. Originally, at the initial application submission, the application proposed only minimal landscaping consisting of some street trees, and no foundation or buffer plantings. The neighbors vehemently argued that the site is currently heavily forested and they wanted to maintain the "secluded area" feeling. The Township Shade Tree Commission agreed that the proposed landscaping plan was insufficient and they recommended additional tree plantings. In response, the applicant agreed to install some additional trees. However, the application still seeked a waiver from providing sufficient landscaping and buffering between proposed lots. The applicant’s engineer explained that this waiver is being requested because the future homeowners may want to provide fencing between lots.

The application would have required a Homeowners Association because the proposed Stormwater Management system was to be placed on private property would require an HOA to maintain.

As is typical at Planning Board applications, the details of the proposed HOA was not presented to the Board as that is typically worked out with the Township Engineering Department after the Board approval is granted.

In this case, however, the neighbors opposed deferment on submitting the specifics of the HOA out of concern that this development would cause drainage and flooding on Fourteenth Street and the Township would not be sufficiently protected to ensure someone is responsible to maintain the Stormwater Management system.

This application got very special treatment from the Planning Board, which typically approves new developments easily, especially if they are technically fully conforming.

The Board cited concerns that there would be insufficient parking both off and on-street due to the "possibility" that there would be basements.

Board Chairman Moshe Neiman explained that his hesitations with this application were due to the "uniqueness" and "specific clientele" of the Fourteenth Street neighborhood.

The applicant's attorney reminded the Board that they are not legally permitted to deny an application solely due to off-site traffic conditions.

In response, a board member stated that "we can consider the safety of the neighborhood".

Board Attorney John Jackson advised the Board that the New Jersey Municipal Land Use Law prohibits the Board from being arbitrary, unreasonable or capricious in their decision or from imposing arbitrary conditions on any specific applicant, however, if there are "peculiar conditions" on the site than the Board does have latitude to deny the application.

Before voting on the application, the Board proposed to approve the application with a condition imposing a deed restriction from building basement apartments. The applicant refused this offer.

Finally, the Board voted nearly unanimously to deny the application. Only Chairman Neiman and Mr. Yair Stern abstained from voting.

Subsequently, on July 11, Attorney Robert Shea, on behalf of Besadar Holdings submitted a letter to the Planning Board requesting that they permit the applicant to return to the Board for an additional hearing to request that the Board "reconsider" their application.

He noted that, during the hearing, a number of issues including sufficient parking and pedestrian safety were brought up by a number of neighbors. "We will be in a position, if the Board is so inclined to reconsider this application, to submit a revised set of plans that will show a revised parking scheme for the Residential homes."

Attorney Ron Gasiorowski, on behalf of the neighbors who were vehemently objecting to the application, responded with a letter to the Board opposing the request for reconsideration.

Mr. Gasiorowski argued that the Board's denial "clearly demonstrates that the Board does not believe that the applicant's property can reasonably and/ or safely support the creation of 9 units with 9 basements for a total of 18 units".

Mr. Gasiorowski further noted that Board members attempted to compromise with the applicant by getting him to reduce the number of lots or to remove the basement apartments, yet he refused.

Finally, Mr. Gasiorowski charged that the traffic study submitted by the applicant was "faulted" as it didn't accurately count the basement apartments and therefore the application was "incomplete" at best and "actually misleading".

As previously reported here on FAA News, the Board did hold a hearing for the Reconsideration request, and despite renewed pushback from the developer, they again uncharacteristically advocated strongly on behalf of this "unique" neighborhood.

At the hearing, Attorney Shea emphasized that they continue to insist on the same number of lots and with basement apartments, however they would add additional off-street parking spaces to alleviate the neighbors concerns that parking would overflow onto Fourteenth Street which is a narrow road at this section of the road.

One of the neighbors who was objecting reminded the Board that they have grave concerns with existing drainage / flooding issues in the neighborhood and therefore they are objecting to the applicant being permitted to defer presenting the details of the proposed HOA.

The application would have required a Homeowners Association because the proposed Stormwater Management system was to be placed on private property and that would require an HOA to maintain.

As is typical at Planning Board applications, the details of the proposed HOA was not presented to the Board as that is usually worked out with the Township Engineering Department after the Planning Board approval is granted.

In this case, however, the neighbors opposed deferment on submitting the specifics of the HOA out of concern that this development would cause drainage and flooding on Fourteenth Street and the Township would not be sufficiently protected to ensure someone is responsible to maintain the Stormwater Management system.

Chairman Neiman uncharacteristically sided strongly with the neighbors, and he put his sentiments "on the record".

"Yes, the application is conforming, and therefore, in a court of law a judge might side with you, however, this board needs to take into account the exclusivity of this neighborhood," Chairman Neiman stated.

"We can't deny this application solely due to traffic, and if we could do that, we would deny every application because there is traffic everywhere in Lakewood. However, this is a very exclusive neighborhood, with neighbors who have lived here a long time and there are no basements in this area, therefore, this application would change the look of this whole neighborhood and that's why the neighbors fought so strongly against this application", Chairman Neiman added.

Chairman Neiman also exhorted the applicant, stating "even if the vote to reconsider is approved, I will not approve the final application unless the parties do sit down and become much closer together than they are now".

Curiously, while the rest of the Board then voted to deny the request to reconsider the application, Chairman Neiman was the single vote in support of the request.

Following the vote to deny the application, the Board adopted a Resolution of Denial which states:

"While the application represented a conforming subdivision, it is the duty of the Planning Board to weigh the evidence and to exercise its discretion in the event of significant concerns of the Board. The Board ultimately rejected the application on the basis of significant public safety concerns regarding the lack of street parking coupled with the substantial proposed density particularly in light of the basement apartments notes on the plans. The Board found that an approval of this application would have significant detrimental effects on the safety of the neighborhood.

"The Board finds the applicant's proposal does not further the purposes of zoning pursuant to the New Jersey Municipal Land Use Law because:
1) The applicant's proposal is not the best planning alternative
2) The proposed development would not secure safety from fire, flood, panic, and other natural and man-made disasters."

Just prior to the Board's vote, the applicant's mother spoke up and said that if the application is denied, her son will definitely sue the Board.

As first reported here, her son did make good on that threat and he is now suing the Board.

In a Complaint in Lieu of Prerogative Writs, filed by Mr. Shea in Ocean County Superior Court, the developer is seeking to overturn the Board's denial, asserting that only the design waiver from providing non-radial lot lines is a valid issue, as the design waiver from providing street trees along the entire Fourteenth Street frontage, which was cited by the Board Engineer is actually not a requirement, and therefore "though there was one single design waiver, the application was "effectively as of right".

The lawsuit continues to charge that although the Board may have had the right to deny this single waiver, that was not the Board's basis for denying the application, noting "neither of the conclusions of the Resolution are representative of the testimony provided at the hearing. At no time did the Board question any expert regarding safety concerns. In fact, the Resolution itself is devoid of any findings of fact on the record which speak to health and safety concerns upon which the Board could have drawn its conclusion."

The lawsuit asserts that Gordon Gemma, who was the only expert to present opposing testimony, only stood for the proposition that the Board lacked jurisdiction over the application due to issues he raised regarding the proposed basement apartments. He did not raise any traffic or public safety issues. Yet, the Board did not deny the application due to jurisdiction issues regarding the basements but due to traffic and public safety concerns.

The lawsuit also contends that Board member Justin Flancbaum urged several times that "a conscientious developer might propose a conservation easement or tree save area to be respectful to the neighbors", despite that no such easement is required nor do any of the surrounding properties have such an easement.

As such, the Board's decision to deny the application for health and safety reasons was "arbitrary, unreasonable, and capricious".

The lawsuit seeks for a Court Order overturning the denial as well as to recover legal fees and costs of filing the lawsuit.

Attorney Jilian Mcleer of King, Kitrick, Jackson, McWeeney and Wells, representing the Planning Board, filed an Answer denying all allegations and seeking an Order dismissing the Plaintiff’s Complaint with prejudice; sustaining the validity of the Board’s decision and adoption of Resolution, denying all equitable and legal relief requested in the Plaintiff’s Complaint; granting the Board's attorneys fees and costs of suit; and such other relief as this Court may deem just and appropriate.

As first reported here on FAA News, Attorney Edward Liston, representing the neighbors who originally urged the Board to deny the application, recently filed a Motion to Intervene, writing to the Court that "the neighbors are concerned that if the application is approved, it will have a severe detrimental impact on the use and enjoyment of their property and its value."

Ocean County Administrative Judge Marlene Ford was originally assigned to hear this case. However, Mr. Liston has a conflict with Judge Ford so the case was transferred to Judge Craig Wellerson.

The developer and the Planning Board have already filed pre-trial memorandums.

Judge Wellerson was not scheduled to release a decision on whether or not to permit the neighbors to join the lawsuit until January 6th, 2023.

However, Besadar Holdings has preempted waiting until this decision date, by already now consenting for the neighbors to Intervene in the lawsuit.

At a Status Conference on Thursday, Judge Wellerson set Thursday, January 12, 2023, as the due date for the Plaintiff to file Trial Briefs. The neighbors and the Planning Board will thereafter file their Trial Briefs.

Lakewood Township's taxpayers will fund the legal fees incurred by the Planning Board to fight the lawsuit.

As previously reported here on FAA News, the Lakewood Planning Board is also currently vehemently fighting a lawsuit against their denial of an application on East 8th Street after the developer refused to provide a proper cul-de-sac bulb, which the neighbors opined was necessary for the safety of the neighborhood.

Although that application was fully conforming, the Board denied it, finding that "an approval of this application would have significant detrimental effects on the safety of the neighborhood".

The developer, Joseph Bitton, represented by Attorney Adam Pfeffer, filed a Complaint in Lieu of Prerogative Writs arguing that the application was a permitted use in the zone and variance-free, thereby making it a by-right application, and therefore the Board's denial of the application was "arbitrary, unreasonable, and capricious", and the denial should be overturned.

Both parties have already filed pretrial memorandums. Judge Ford recently set the schedule for submission of trial briefs, as well as the trial date which is Monday, March 27, 2023.

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1 comment:

Anonymous said...

It was stated in testimony at the hearing that there are real flooding issues in the area and the removal of so many trees without replacement will make flooding in the area even worse. The Judge will see a that in the testimony record, and he will prudently tell this developer to try again without such density or basements.