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"See you in court" vowed renowned RLUIPA Attorney Donna Jennings, Esq. of Wilentz Goldman & Spitzer after the Jackson Township Zoning Board tonight denied a Use Variance for a new shul building at 26 Whitesville Road.

The shul, which is managed by Mordechai Hirsch of 26 Whitesville Road, LLC, first appeared before the Board back in March, with a plan to convert the existing structures on the property - formerly a dog kennel - into a 1,200 sq foot shul, with 12 parking spaces, and to retain the existing single family home on the property to be rented out for a residential use.

Mr. Hirsch represented that the shul would contain up to 35 congregants and he anticipated that there would be fewer than 20 cars parked on the property, and that he would post "no parking" signs along the road if required.

At the time, neighbors and board members pushed back, saying that the parking was insufficient.

Subsequently, as plans to build a 100-home development across the street were approved by the Township, the developers of the Whitesville Road changed course to more ambitiously plan for a real big shul building that could accommodate expected population in the area for the next ten years.

As such, the original "keep but convert the existing building plans" were upgraded to demolish all structures on the lot, including the former dog kennel and the single family home, and to build a 14,310 sq foot building with a shul and "party room" and warming kitchen in the basement, a separate building for a Shabbos mikva, and a large parking lot with 67 spaces.

The application was presented to the Board in August, represented by Attorney Donna Jennings, Esq. of Wilentz Goldman & Spitzer, Engineer Ian Borden of PDS Engineering, and Traffic Engineer John Rea of McDonough & Rea.

The architectural plans submitted depicted a main sanctuary of 1,922 sq feet as well as an otzar / secondary rooms of 389 sq feet on the first floor, an Ezras Noshim of 1,391 sq feet on the second floor, and a 3,034 sq feet party room and 368 sq feet warming kitchen in the basement.

The Township's Land Use Ordinance requires 1

 parking space for each 50 square feet of floor area within the main congregation seating

 area. The main sanctuary + the Ezras Noshim = 3,313 sq feet. 67 parking spaces are required and 67 off-street parking spaces were proposed.

Houses of Worship are conditionally permitted in the RG2 Zone in which the 2.6-acre, triangular lot is located. however, Conditional Use Variance relief was necessary as the application did not comply with all standards of the conditional use. These include a 79.6-foot front property line setback where 100 feet is required; a landscaped buffer of only 25 feet around the entire length of side and rear property lines from a residential use or district where 50 feet is required; and for parking within 30-feet of the front property line where a 100 foot setback is required.

The developers of the shul provided a Statement of Operations which included the following conditions:

The following are not permitted on the property:

 Weddings

 School or educational facility

 Daycare operations

 No person can reside in the house of worship

 The house of worship may not be rented to any individual or entity who is 

not a congregant of the house of worship

The property owner will be responsible for the operation and maintenance of the

 parking area, landscaping, lighting, utilities, and building. Refuse collection will be

 provided by private carter. The refuse enclosure will comply with the Township design

 standards and will contain separate areas for storage of refuse and recyclables.

At the time the application was bifurcated for Conditional Use Variance relief only, as this would grant the developers of the shul the initial approval before they need to spend thousands of dollars on Site Plans. However, the Board shied away from granting the Use Variance prior to seeing the full Site Plan.

This application also sought Use Variance relief to build two office buildings at the adjacent 40 Whitesville Road. The Board opined that by consolidating the shul lot together with the adjacent "proposed for office buildings lot", the need for the parking setback would be eliminated.

The Board also requested walkways around the entire building and to dedicate the parking spot closest to the building as a drop-off zone, with signage.

The developers of the shul now returned to the Board with a compromise whereas they sought only the bifurcated Conditional Use Variance relief only, as they did not yet submit a fully engineered Site Plan, however, the Use Variance plan was "upgraded" with many elements typically reserved for a Site Plan.

The updated plan eliminates the previous office building request.

The architectural plans were revised to depict a slightly smaller main sanctuary of 1,812 sq feet as well as an otzar / secondary rooms of 382 sq feet on the first floor, an Ezras Noshim of 1,370 sq feet on the second floor, and a slightly larger party room of 3,227 sq feet and a 363 sq feet warming kitchen in the basement.

This comes to a total of 3,156 sq feet of main congregation seating area. The reduced plan requires only 64 parking spaces. The previously planned 67 spaces are still proposed as before.

The Site Plan still requires Conditional Use Variance relief for the 79.6-foot front property line setback where 100 feet is required; a landscaped buffer of only 25 feet around the entire length of side and rear property lines from a residential use or district where 50 feet is required; and for parking within 30-feet of the front property line where a 100 foot setback is required.

Mr. Borden testified to the Board that, as previously requested by the Board, they have now provided sufficient access for Emergency response vehicles around the side of the shul to the mikvah building. He also testified that the plan was presented to the Township's Fire Prevention Bureau and they approved the proposal.

Mr. Borden further testified that a shul is an inherently beneficial use and that "the site can accommodate the use that is proposed." He further testified that this is not a Use Variance where there need to present the Special Reasons as to why the Board should permit the use, rather this is a Conditional Use Variance where the use is already permitted and they only need to satisfy the positive and negative criteria to be granted relief from the conditions of the Conditional Use.

The Board asked the developer to redesign the driveway to an entrance on one side and an exit on the other side. Mr. Borden agreed that if the County agrees to that request they can comply and revise their plans.

The Board also asked for a fence around the infiltration basin. Mr. Borden agreed that they can comply.

Board Member James Hurley then complained about the 24 parking spaces closest to Whitesville Road and called them "dangerous". He insisted that he can not approve the application unless these parking spaces are moved to the adjoining lot.

Ms. Jennings vehemently objected to that condition.

Ms. Jennings also represented that Jackson Township's setback ordinances treat Houses of Worship in this zone unfairly over non-religious uses which have lower setback requirements, and that is this were an application for a non-religious use, they would comply with the ordinance. Ms. Jennings noted that appears to be in violation of the settlement with the U.S. Justice Department which requires the Township to amend their ordinances to treat religious uses equal to non-religious uses.

Mr. Hurley stood his ground and argued that imposition of such a condition would not violate RLUIPA and therefore he feels confident in voting to deny the application.

A motion and second to approve was offered.

Only 4 members, Carl Book Jr., Scott Najarian, Steve Costanzo, and Lynne Bradley voted in the affirmative.

3 members, James Hurley, Raymond Lovacco, and Jeanine Kaunitz Fritch voted in the negative.

The Conditional Use Variance request failed as it requires 5 votes in the affirmative.

Ms. Jennings responded "see you in court!"

As previously reported here on FAA News, in December 2021, after Zoning Officer Jeffrey Purpuro denied Jackson homeowner Yaakov Feinstein's application to install a mikvah as an "accessory use" to a single family home on South Cooks Bridge Road on the basis that the mikvah "appeared to be a commercial spa which was not permitted in the residential zone", the homeowner, represented by Ms. Jennings declined to appeal to the Zoning Board and immediately filed a lawsuit against the Township in Superior Court.

Ms. Jennings countered in the lawsuit that the Township's own zoning ordinances define "commercial" as something which is "made or done for sale or profit", which the homeowner was not proposing for his mikvah.

This lawsuit worked because super speedy quickly Jackson Township officials did an about faced and settled the matter accordingly!

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1 comment:

Anonymous said...

Although the denial of the variances may or may not have been motivated by anti Semitism, the fact remains that issuing variances in general is not a good idea. The zoning laws were put in place to maintain the suburban set up of the neighborhood. Once variances are issued, areas become more crowded and less spacious. We all complain about what happened to Lakewood, Jews and non Jews alike. Well, that's how it started. Builders started requesting variances and they were issued like candy. We see the horrible results now, so how can we blame other townships for trying to prevent that? For the most part, people move to Jackson for the suburban feel and the spaciousness of the town. Why ruin that for anyone? ALL Jackson residents want to keep Jackson from turning into another Lakewood.