After numerous pushbacks and formally denying the Whitesville Road shul application, Jackson Township's Zoning Board tonight agreed to reconsider, and ultimately approved the Shul's Conditional Use Variance application.
This Reconsideration was made possible due to strong efforts by renowned RLUIPA Attorney Donna Jennings, Esq. of Woodbridge, New Jersey-based Wilentz Goldman & Spitzer.
The shul, which is managed by Mordechai Hirsch of 26 Whitesville Road, LLC, first appeared before the Board back in March 2022 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. 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.
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.
In December 2022, the applicant returned to the Board with a compromise whereas they sought only the bifurcated Conditional Use Variance relief only, as they still 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 architectural plans were additionally 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 were still proposed as before.
As previously reported here on FAA News, the Board denied this application by a 4-3 vote. As the application requires Conditional Use Variance relief, a minimum of 5 affirmative votes are required for approval of the application.
The main hurdle in getting the application approved was Board Member James Hurley who 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.
Carl Book Jr., Scott Najarian, Steve Costanzo, and Lynne Bradley voted to approve the application. James Hurley, Raymond Lovacco, and Jeanine Kaunitz Fritch voted to deny the application.
Ms. Jennings responded "see you in court!" Mr. Hurley responded "we will see you there!"
As previously reported here on FAA News, instead of running immediately to Court, the applicant first asked the Board to reconsider its prior decision.
Ms. Jennings submitted to the Board an 8 page brief outlining why she felt the Board's decision, which came "despite numerous revisions to the proposed site plan and concessions made during the public hearing," was "based on clear mistakes of law and fact."
Ms. Jennings specifically highlighted that most of the Board's concerns were regarding Site Plan issues which should not have been considered at this time as they are currently only seeking the initial Conditional Use Variance relief with a review of the Site Plan to follow at a later point.
At the hearing tonight, Ms. Jennings stuck in the Board's face that, as the news was first broken here on FAA News, after the Board denied Oros Beis Yaakov's application, long drawn out litigation followed which ended in the Board and the Township agreeing to pay Oros $1.35 million to settle that matter.
Board Member James Hurley spoke out at length against reconsidering the application, saying "I can't just change my vote unless they make changes because that would mean I agree I made a mistake, and I did not make any mistakes based on the MLUL. We did factor in the 'negative criteria' when we denied the application. There is mow no show of entitlement or necessity for Reconsideration. Based on the application that they presented, there is no basis for me to now change my vote."
All board members, with the exception of James Hurley and Jeanine Kaunitz Fritch, voted to Reconsider the application.
At that point, Mr. Hurley stated that the proposed driveway is "unsafe" and he therefore offered a Motion to approve the application on the condition that they move the "troublesome and unsafe 24 parking spaces" away from the front yard setback to another side of the parking lot. Ms. Jennings vehemently objected to this offer, arguing that there is no professional testimony on the record of their application to support Mr. Hurley's assertion that the proposed driveway is "unsafe."
Ultimately, a majority of Board members noted that it was unreasonable to impose such a major change on the application without acceptance of same by the application. They then voted to approve the Conditional Use Variance application as it was presented.
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