MERE DAYS AFTER SETTLING MAJOR LITIGATION, BNOS BROCHA IS GETTING DRAGGED RIGHT BACK TO COURT

Just about 2 weeks ago Bnos Brocha finally put an end to their lengthy litigation by agreeing to withdraw their Court Motion seeking to reopen their simcha hall.

However, their legal troubles have already restarted as their industrial neighbor is now claiming that Bnos Brocha has violated their Consent Order, FAA News has learned.

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 permitting "the banquet/catering facility... 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 their 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 recently 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:

"There is no proof before the Court today, nor has there ever been, that the school is being used a catering hall...

"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 “the 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.

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.

At the same time, Bnos Brocha's Planning Board hearing was postponed from November 29th to December 20th.

As previously reported here on FAA News, Clayton Associates and Bnos Brocha recently 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 also stipulates that Bnos Brocha has only received 2 Planning Board Resolutions of Approval, from their original 2013 Site Plan as well as from their 2018 pool application, and that Bnos Brocha will adhere to the strict wording of these resolutions which condition that they shall "resubmit this entire proposal for reapproval should there be any deviation from the terms and conditions of this resolution or the documents submitted as part of this application."

Along with signing the consent order, Clayton Associates completely withdrew their lawsuit, with the stipulation that they can immediately run back to Court to Enforce Litigant's Rights if Bnos Brocha does violate the Consent Order.

Bnos Brocha also withdrew their Planning Board application to legalize their banquet hall.

However, this legal saga has now restarted.

Bnos Brocha has just started construction for an expansion of their existing parking lot. As soon as they noticed, Attorney Rob Shea wrote a letter to Bnos Brocha, in accordance with the Consent Order, notifying them that this construction is in violation of the Consent Order which requires them to return to the Planning Board prior to commencing any construction.

Mr. Shea also notified the Township Attorney of the violation and demanded that the Township issue a Stop Work Order on the construction work.

Saying that they did not receive any response from Bnos Brocha or from the Township, Clayton Associates has now filed an Order to Show Cause with Temporary Restraints.

The court filing asserts that on last Thursday and Friday, "an excavator was digging up the land and pavement on the easterly side of the property and piles of dirt and gravel were stacked in mounds nearby. The trucks from the construction crew parked along Corporate Road West and blocked the accessway to 1650’s lot which provides access to several of our tenants."

The court filing notes that the whole litigation originally commenced because the school previously violated their Township approvals and these violations caused "heavy traffic congestion and as trespassing", and now, "the construction taking place on Bnos’ property could potentially exacerbate all of the issues that 1650 has already faced for over a year. Furthermore, it is unclear as to what other factors will be implicated by Bnos’ construction, such as the ingress and egress to the property, the flow of traffic, as well as potential drainage and lot coverage issues."

"The history of this litigation has been an ongoing cycle of blatant disregard for Court Orders and the land use ordinances of Lakewood perpetrated by Bnos to the detriment of its neighbors. Bnos must not be allowed to continue its construction in open and obvious violation of the Consent Order. Furthermore, although Township counsel was copied with 1650’s letter, to the best of my knowledge, the Township has not issued a stop work order to Bnos," the court filing continues.

The court filing seeks for the Court to schedule a "show cause" hearing on the matter, and to immediately impose restraints "enjoining Bnos Brocha from commencing or continuing any construction, modification, or other changes to the site or use from those contained within the Consent Order until such time as the property receives approval from the Lakewood Township Planning Board, or, in where applicable, the Lakewood Township Zoning Board of Adjustment, as well as any and all requisite outside agencies."

Bnos Brocha's Attorney Lawrence Shapiro immediately responded with Opposition to the Motion, arguing that this parking lot expansion was approved administratively by the Planning Board Administrator who determined, based on Township ordinance, that this expansion is less than 1,500 sq feet and that "the work involved shall not negate any condition of a previously approved site plan as created by the approving Board," and therefore no public hearing was required.

Mr. Shea is expected to soon submit a Reply Brief.

The continuation of the litigation is likely to focus on arguing over the meaning of the condition included in the Board's Resolution that they shall "resubmit this entire proposal for reapproval should there be any deviation from the terms and conditions of this resolution or the documents submitted as part of this application", versus the fact the Township ordinance does permit for certain administrative approvals with no public hearing.

This is not the first time that this wording which the Lakewood Planning Board includes in the majority of their Resolutions of Approval has landed the public and the Board in a sticky mess.

As previously reported here on FAA News, Bnos Esther Malka wanted to return under "correspondence" - which does not require notice to the public - to lift a condition of their approval which restricted the use of their banquet hall to Shabbos only, despite that their original Resolution of Approval required them to "resubmit this entire proposal for reapproval should there be any deviation..." Resubmitting an entire proposal does sound like providing new notice to the public.

Additionally, as previously reported here on FAA News, Talmud Torah Darkei Avoseinu also submitted "correspondence" to the Board with no notice to the public, with a request to finish their basement.

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