As the news was first broken here on FAA News, Ocean County Superior Court Judge Marlene Ford on Friday morning overturned Lakewood Township Planning Board's approval of Yeshiva Toras Chaim's dormitory expansion, saying that because the Township Committee have only deemed dormitories a permitted use as part of a Planned Educational Campus, the Planning Board lacked jurisdiction to approve the application.
Following this decision, the Planning Board has now halted hearing Migdal Bais Yaakov's application for a dormitory.
It may soon be easier to get approval for a dormitory in Jackson than in Lakewood.
Migdal Bais Yaakov, located at 541 Joe Parker Road, is a girls seminary which last year received Planning Board approval to change the use of a residential dwelling into their school for 25 students.
Migdal recently applied to Lakewood Township's Planning Board for Major Site Plan approval to construct 2 school buildings.
Application SP 2499 is for construction of an approximately 16,572 sq foot elementary school building for 675 students, with a gymnasium and pool.
Application SP 2498 is for construction of an approximately 27,263 sq foot building for a seminary with a dormitory for 200 students, and a gymnasium, and pool.
As previously reported here on FAA News, neighbors retained Paramus, New Jersey-based Attorney Peter Humblius wrote to the Board that as the applications include a dormitory, based on Judge Ford's recent decision, the application requires a Use Variance which only the Zoning Board can grant.
In response, on Tuesday night, the Planning Board held back from hearing the application which included the dormitory.
Board Chairman Moshe Neiman stated that while Judge Ford did issue an oral decision that the Board lacks jurisdiction to approve dormitories, the judge's written Decision and Order have not yet been released, and therefore the Board will table the dormitory until after the judge's written Decision and Order are released and the Board has had an opportunity to review same.
It appears that it may soon be easier to get approval for a dormitory in Jackson than in Lakewood.
As now clarified by Judge Ford, Lakewood Township's zoning ordinances permit dormitories only in Planned Educational Campuses which are permitted in certain zoning districts on a minimum lot area of 3 acres, and only for a "not for profit institution of higher education that is a not for profit entity that is fully accredited and licensed by the Office of the Secretary of Higher Education of the State of New Jersey and one that offers both undergraduate and graduate degrees and is devoted to higher education and no other forms of education."
Additionally, the land and all structures including dwelling units shall be owned and developed only by the institution of higher education and not by or in partnership or in other arrangement with any investor group, construction company, a not for profit entity or any other third party.
In Jackson however, under the terms of a settlement with the U.S. Justice Department, Jackson's Township Council is required to soon adopt an Ordinance permitting dormitories on less than 3 acres in certain zoning districts, and with no requirement for the schools to be accredited by the State.
In March 2017, the Jackson Township Council passed Ordinance 03-17 and Ordinance 04-17. Ordinance 03-17 removed public, private, and parochial
schools as a permitted use in a number of Jackson’s zoning districts. Both ordinances also expressly prohibited
dormitories throughout Jackson, making it impossible for religious boarding schools
to establish as of right or as a conditional use in the Township. Any development
seeking to include a dormitory would require a use variance from the Zoning Board.
In May 2020, after the U.S. Department of Justice filed a lawsuit alleging that by enacting zoning ordinances restricting religious schools and barring religious boarding schools, the Township violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Fair Housing Act (FHA) by targeting the Orthodox Jewish community.
(RLUIPA is a federal law that protects religious institutions from unduly burdensome or discriminatory land use regulations.)
The lawsuit also alleged that the Township's Planning Board applied those ordinances in a manner that discriminated against the Orthodox Jewish community as, subsequent to the adoption of the ordinances, the Board approved, without requiring a variance, the plans for two nonreligious projects with dormitory-type housing.
The complaint further alleges that the township and planning board enacted the ordinances against a backdrop of extreme animus by some Jackson residents and township decision makers toward the Orthodox Jewish community and a movement by residents to keep Orthodox Jewish individuals from settling in Jackson, and that the township and planning board’s actions towards the Orthodox Jewish community violate RLUIPA’s non-discrimination and equal terms provisions, as well as the FHA.
Immediately after the lawsuit was filed, the Township
repealed Ordinance 04-17, but they did not repeal Ordinance 03-17, which also included
language about dormitories.
After dragging out the litigation for 2 full years, on June 15, 2022, Jackson Township and the Justice Department signed a Consent Decree whereby they agreed to settle the lawsuit by Jackson Township repealing the remaining active discriminatory 03-17 ordinance and "replace it with an ordinance that will allow religious elementary and secondary schools, religious higher learning institutions and religious residential schools in numerous residential and other zoning districts, and permitting associated housing such as dormitories as an accessory to private, parochial, and public schools in certain zoning districts."
The consent order specifies that the new zoning ordinance is required to treat religious schools equally with non-religious institutions that operate in the Township.
While the Township Council has not yet adopted the new Ordinance, according to settlement documents and zoning maps obtained by FAA News, we do know that the soon-to-be Ordinance is to permit dormitories on less than 3 acres in certain areas, and with no requirement that the private schools have accreditation from the State.
Under the terms of the settlement, the Township will permit religious schools with dormitories, to locate, at a minimum, in the following zoning districts:
o The NC zone where it allows federal, state, county, and other public buildings,
and other similarly situated assembly or institution uses with comparable zoning
impacts;
o The LC zone where it allows federal, state, county, and other public buildings,
funeral homes, libraries, museums, and other similarly situated assembly or
institution uses with comparable zoning impacts;
o The PV and RG-2 zones where they allow public and quasi-public schools and
institutions of higher learning, other public buildings of a governmental or
cultural nature, and other similarly situated assembly or institution uses with
comparable zoning impacts;
o The I zone where permitted uses are of a similarly situated assembly or institution
use with comparable zoning impacts, or where permitted uses are of a more
intense zoning impact.
Certain areas will require 3 acres of land dormitories and certain areas will permit dormitories on less than 3 acres of land.
All minimum lot widths, impervious coverage limits, roadway frontage requirements,
parking requirements, landscaping, buffering, and screening requirements, road
classification-location requirements, conditional use requirements, and other
development criteria imposed on religious schools with
dormitories in a zoning district shall
be consistent with and on terms that are not less equal than the use and minimum lot size
requirements, parking requirements, impervious coverage limits, roadway frontage
requirements, and other development criteria imposed on nonreligious assemblies or
institutions in the above listed zones.
Oh, and by the way: As part of the settlement agreement with Oros Bais Yaakov, Jackson Township will not require State accreditation as an excuse to bar construction of a school, therefore it appears that Lakewood's limitation on dormitories only for "not for profit institutions of higher education... [which are] fully accredited and licensed by the Office of the Secretary of Higher Education of the State of New Jersey and... offers both undergraduate and graduate degrees..." will not be a requirement in Jackson.
So... dormitories will soon be more easily permitted in Jackson than in Lakewood.
(For clarification, applications for schools have recently been able to be presented to the Township Planning Board as a permitted use. This is as a result of the interim injunction Agudath Israel received in May 2021 which struck down Jackson Township's ordinances banning schools and Eruvim. Dormitories, however, were not included in this injunction and will only be permitted once the Township Council adopt the new Ordinance as required under the terms of the Settlement Agreement with the U.S. Justice Department.)
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