Lakewood's property tax dollars went right down the drain this week, as Zoning Board Attorney Jerry Dasti admitted in court that the Board makes up their own rules.
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. Currently, the township only permits construction of age-restricted housing units in this area.
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. The developers went bankrupt after building only 7 buildings (210 apartments).
A new developer has purchased the project out of bankruptcy. Their analysis of market price sales in several age-restricted developments around Lakewood claims to show that it is not currently cost effective to build age-restricted housing. Therefore they applied to the Zoning Board to permit lifting the age-restriction on the not-yet developed land, and to build it as a new development separate from the existing development, with separate HOA's.
However, 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.
Ultimately, 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.
A similar application presented to the board last summer drew over 200 letters of opposition, causing for that application to be withdrawn by the developers.
However, in April, as first reported here on FAA News, the developer filed a lawsuit in Ocean County Superior Court seeking to overturn the Board's denial, on charges that board members violated the Open Public Meetings Act during the meeting, "by passing notes to each other, routinely engaging in private sidebar conversations, and reviewing their respective computer screens throughout the meeting", and "unfairly failed to properly analyze the merits of the application before denying it".
Additionally, due to the then-Public Health Emergency, the Board permitted members of the public to submit comments on the application via email prior to, and during the proceeding, (which was held in-person). The lawsuit charges that the Board violated a State Statute which requires all public comment to be received only under oath or affirmation, which was not possible via email.
The lawsuit also asserts that the Board's Resolution of Denial is void of the Statutorily required conclusions of law to support the Board's denial of the application.
As such, the developer's Complaint in Lieu of Prerogative Writs asks the Ocean County Superior Court to override the Zoning Board denial, on the basis that it was arbitrary, capricious, and unreasonable, and automatically approve his application.
In the Trial Brief he filed last month, 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."
At the big trial this past week, the lack of conclusions of law in the the Board's Resolution of Denial was a hot topic.
Attorney Matthew 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".
This is quite an interesting flip flop as, during the Clifton Avenue & 5th Street cell tower hearing, when a member of the public requested that the Board carry the application so he could retain an expert and bring him to the next Board meeting, Chairman Abe Halberstam responded that if the Board would approve the application, then he could bring his expert and all his complaints to court!
[As previously reported here on FAA News, Attorney Jan Meyer has added this statement to his lawsuit against the Board's approval of the cell tower, asserting that by ignoring the neighbors concerns, the Board incorrectly lead to believe him that going to Court would be the time to supplement and bring additional evidence related to the application. As previously reported here on FAA News, a Court hearing is scheduled for this case next Friday, December 16th.]
At the board meetings they tell complainers to go to court, and in court they argue that they should have addressed their complaints at the board meeting!
And all with our property tax dollars...
Oh, and one more thing from this court hearing raises quite some eyebrows.
Mr. Fiorovanti argued that the developer brought a "real estate market expert" who testified that building age-restricted apartments would not be financially feasible as their market is down, and in response, board members simply waived away this "expert report" and asserted on their own that Lakewood does have a strong market for senior housing.
Mr. Fiorovanti further argued that the developer brought "Traffic Expert" Scott Kennel who testified that there would be no traffic concerns, and in response, Board Chairman Abe Halberstam asserted that the proximity of the driveway of the existing development and the new development would cause traffic concerns.
"We brought experts. How dare the board members waive off our experts with their own 'non-expert, speculative' opinions?" challenged Mr. Fiorovanti.
Here Mr. Dasti strongly the Board, saying "your experts simply gave whatever testimony you paid them to say. The Board members certainly are permitted to assert the facts as they see it in clear view."
Wow, this is quite interesting! Often at board meetings, Mr. Dasti hurriedly encourages the Board to approve applications by asserting that "all the testimony they heard from the developer was expert testimony". It's not too often that Mr. Dasti permits and he certainly doesn't encourage board members to assert their own "in plain and simple view" opinions.
Judge Ford has not yet released a decision on the Covington Village lawsuit.
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