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As Lakewood's famous Lake Terrace awaits rescheduling of a Township Zoning Board hearing on their Use Variance application to finally legalize their banquet and concert hall, their saga in Superior Court continues as Clayton Associates has now filed a Motion for Reconsideration of the Stay on the litigation.

Lake Terrace is currently embattled by 2 separate lawsuits filed against them by their industrial neighbor Clayton Associates, which allege that Lake Terrace never received proper approval from the Township's Zoning Board.

Lake Terrace is located in a zone designated by the Township as the Airport Hazard area and that does not permit schools nor banquet halls. Therefore, either use would require a Use Variance approval from the Township's Zoning Board of Adjustment.

Back in 2005, Beis Rivka Rochel received Zoning Board approval to change the use of an office building located at 1690 Oak Street into a "private school with an assembly hall".

At the Zoning Board hearing, School Dean Rabbi Shlomo Chaim Kanarek testified that his proposed "assembly hall" would be used for High School plays. There was never any mention of weddings and concerts.

The Zoning Board's 2005 Resolution of Approval for the "school and assembly hall" clearly states that if there are any changes to the project as approved, the applicant shall "resubmit any such changes to this Board for review and determination". No application for an amended approval was ever submitted to the Board.

Somehow, after this Zoning Board approval, the Lake Terrace wedding and concert hall was built, and in 2010, unexplainably, Lakewood Township issued a Certificate of Occupancy for a banquet hall, despite the owners never receiving a Use Variance from the Zoning Board for this banquet hall.

In December 2020, Clayton Associates, represented by Attorney Rob Shea, filed a lawsuit seeking to shut down the banquet hall on the basis that it never received the required Use Variance from the Zoning Board.

After an initial injunction hearing on the matter, on February 3, 2021, Ocean County Superior Court Judge Marlene Ford signed an Interim Order permitting Lake Terrace - pending the outcome of the lawsuit - to continue hosting weddings, but with certain restrictions. That interim order, as well as several additional interim orders, continue to permit operation of the banquet hall with certain restrictions on the on-street parking as well as the maximum number of guests.

In December 2021, after learning that Lake Terrace was also hosting large concerts, Clayton Associates filed a separate lawsuit seeking to ban all concerts at Lake Terrace on the basis that Lake Terrace never received Township Zoning Board approval for a "concert hall". Superior Court Judge Craig L. Wellerson then ordered that concerts are not to be held at all at Lake Terrace. (The concert hall issue was deemed differently than the banquet hall issue as the Township did at one point issue a Certificate of Occupancy for a banquet hall, they never issued a Certificate of Occupancy for the concert hall use and therefore Lake Terrace had no legal standing to retain that non-permitted use).

On March 16, 2022 Lake Terrace filed a Motion to amend the restraining order to permit concerts to take place on the property.

Judge Marlene Ford held oral arguments on April 14, and denied the motion, saying "what you're asking me to do is to bypass the Land Use boards in Lakewood and to grant your request to conduct the business. And your basis is simply for 1) it's a profitable business, and 2) because we've done it [illegally] all along".

On August 12th, Clayton Associates filed a Motion for Summary Judgement on this lawsuit to close things out with a final order that concerts can not be held at Lake Terrace until if, and when they receive all non-appealable approvals and permits.

On August 30th, Lake Terrace's Attorney Matthew Fiorovanti filed Opposition to Plaintiffs Motion for Summary Judgement, and a Cross-Motion to Stay the Litigation pending the outcome of their Zoning Board application.

In his motion filing, Mr. Fiorovanti indicated that Lake Terrace has submitted an application for use variance and site plan approval to the Board to allow the Property to continue to be used for banquets, weddings, concerts, and all other manner of events and gatherings - "not as an admission that it is not permitted to use the Property to host banquets, weddings, concerts or other events, but rather to bring an end to the lengthy and costly litigations instituted by Plaintiff".

Mr. Fiorovanti noted that the Board has scheduled a special public meeting on the application for October 24, 2022. "At that time, or at some time shortly thereafter, if the Board approves the application, the Board will conclusively decide that the Property can continue to be used to host concert events. At that time, this litigation will be rendered moot, as the Board will have resolved the sole issue presently before the court: whether the Property can continue to be used to host concert events, and therefore, instead of the court reaching this question of whether or not the Property can continue to be used to host concert events, "in accordance with applicable principles of judicial economy, the court should stay this litigation pending the outcome of KBS’s application."

Curiously, Lakewood Township - at taxpayer expense - joined in the efforts on behalf of Lake Terrace!

Attorney Danielle A. Rosiejka, submitted a 13 page Opposition to Plaintiffs Motion for Summary Judgement, all to beg Judge Ford not to order the Township to enforce its own zoning laws!

Ms. Rosiejka admits that "it is undisputed that the subject property is located in a zone in which a “concert hall” is not a permitted use", however, she argues that Mandamus (which would direct the Township to enforce its zoning ordinances) should not be granted here because.... 1) while there is no dispute that this use is not permitted, the Plaintiff has failed to state how the zoning violation "has especially affected the plaintiff",... 3) there is "another adequate form of relief" as "the Defendant has applied for a use variance before the Zoning Board and the Plaintiff’s concerns about the property will be addressed in that forum".

Attorney Shea filed a Reply Brief, clarifying that the two arguments which are, 1) the permissibility of the concert use is pending before the Zoning Board and all judicial action should be held until the Zoning Board hears the case and rules on the matter, and 2) the Plaintiff does not need to run to court as they will have an appropriate remedy at the Zoning Board, is all nonsense, as despite whatever use variance relief the Zoning Board may grant in the future, it does not change the fact that this use is currently not permitted, and while the Zoning Board can determine whether or not to grant a Use Variance, they can not determine whether or not Lake Terrace can continue concerts until they obtain a Use Variance. Therefore, the matter is up to the Township to enforce their zoning laws, and if the Township simply refuses to enforce its own ordinances, the Plaintiff does have no other remedy than to seek the Court's order.

Ultimately, Judge Ford denied the Motion for Summary Judgement, explaining that "there are substantial issues of fact which preclude the grant of summary judgment."

Judge Ford granted the Cross-Motion for a Stay "pending a decision by the Lakewood Zoning Board."

The granting of the Stay means there will be no full-blown trial nor a "final determination" regarding the concert hall use.

In response, Mr. Shea has now filed a Motion for Reconsideration on the Stay.

He argues, "while the issue of whether or not the property will receive a use variance to host concerts in the future is before the Board, the question of whether or not the operation of concerts to date qualifies as a violation of Lakewood's ordinances and the property's only Resolution of Approval, remains before the Court. The Plaintiff is requesting this Court to make a determination as to whether or not the Defendant's had the right (past and present) to operate this site as a concert hall."

Mr. Shea's proposed order states that:

• The Court finds that Defendants KBS Mt. Prospect, LLC and Lake Terrace Manager, LLC have operated a concert hall/concert venue on the
property located at 1690 Oak Street in Lakewood, New Jersey (“property”) in violation of Resolution 3582, their only existing Resolution from the Lakewood Zoning Board of Adjustment, and § 18-903(m) and (k) of the Lakewood Unified
Development Ordinances.
• The property shall be barred from operating as a concert hall/concert venue until KBS receives a final, unappealable use variance for a concert
hall/concert venue from the Lakewood Township Zoning Board of Adjustment, complies with any and all conditions of same, and obtains any and all additional approvals which may be required, including but not limited to, a Zoning Permit, a Certificate of Occupancy, and any required outside agency approvals.
• The Township of Lakewood shall enforce this Order until such time as the property obtains the above listed approvals.

Mr. Shea asserts that the Motion for Reconsideration should be granted because a) the Plaintiff has the right to relief against Lake Terrace and the Township, and b) the Court erred in its granting of a Stay as it was based on a "palpably incorrect or irrational basis."

Lake Terrace and the Township have not yet filed any Opposition or Cross-Motion.

Judge Ford is likely to hold oral arguments on the Motion on January 20, 2023.

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