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Ocean County Superior Court Judge Marlene Ford has upheld the Lakewood Planning Board's approval of Sudler's minor subdivision application.

In an act considered by Planning Board Attorney John Jackson as retaliation for suing them over their banquet hall, the owners of Lake Terrace opposed the minor subdivision and its extension and even tried to overturn it in court.

Judge Ford has now denied those efforts.

Lake Terrace is currently embattled by multiple lawsuits filed by their industrial park neighbor Clayton Associates which assert that they never received Township Zoning Board approval for the use of their banquet hall and concert hall.

Instead of just sitting back and being the one to receive all of the blows, Lake Terrace has been working hard to show Clayton Associates what it feels like to be on the receiving end of the deal - with a lawsuit opposing Sudler's routine Minor Subdivision!

In November 2021, Sudler Lakewood LLC which owns properties adjacent to Lake Terrace, presented an application to the Lakewood Planning Board for a Minor Subdivision of their single property into 4 separate lots for financial reasons (to renegotiate their mortgage). This would typically be a very routine matter for the Board, as the applicant is not seeking to construct anything or to make any changes to the site, but rather simply to draw an imaginary line through the lot so they can renegotiate their mortgage.

However, this application was anything but routine.

Attorney Ron Gasiorowski, who told the Board that he was representing "Lake Terrace and Bnos Brocho who are neighbors of the Sudler property" objected to the application on several issues.

The existing single lot currently has access directly onto Towbin Avenue. By subdividing this lot into 4 lots, some of the new lots (which, by the way, are mainly unusable due to wetlands) will no longer have access directly onto a street, therefore, the applicant seeked to provide easements across the lots for cross-access so they could continue to cut the trees and maintain the wetland property.

Mr. Gasiorowski claimed that "easements" are not "permitted uses" under Lakewood Township's zoning ordinances and therefore this application required a Use Variance which only the Zoning Board - and not the Planning Board - could grant.

Furthermore, Mr. Gasiorowski argued that the legal notice published by Sudler was insufficient as it did not disclose that the application required a Use Variance.

Mr. Gasiorowski further argued that, under state law, only the Zoning Board has jurisdiction to approve a Subdivision where the new lots would not front a "street", and in this case, by approving this Minor Subdivision, the Planning Board would be approving a Subdivision where the new lots would not front a "street".

Additionally, Mr. Gasiorowski argued that the New Jersey Municipal Land Use Law prohibits Municipalities from issuing construction permits for structures on lots which do not abut public streets, and by approving this Minor Subdivision, the Board would be creating lots upon which, the Township would not be permitted to issue construction permits.

The Board noted that the only issue they had with the application was that the Township zoning ordinances require a sidewalk in every Subdivision application, whether for a major development or for a Minor financial matter.

In response, the applicant agreed to install a sidewalk as a condition of the Minor Subdivision approval, and the Board then approved the Minor Subdivision application.

Subsequently, in January 2022, as first reported here on FAA News, Mr. Gasiorowski, on behalf of Lake Terrace, filed a lawsuit against the Planning Board and Sudler.

In the Complaint in Lieu of Prerogative Writs, Mr. Gasiorowski reiterated the arguments he presented at the Planning Board hearing, and claimed that the Board's approval of the Minor Subdivision was "arbitrary, capricious, and unreasonable" as it "failed to consider and apply important planning and zoning principles and requirements".

On February 28th, Attorney Jonathan Epstein of Faegre Drinker Biddle and Reath LLP on behalf of Sudler filed an Answer simply denying all allegations.

On March 8th, Attorney Jilian Mcleer of King, Kitrick, Jackson, McWeeney, and Wells, LLC on behalf of the Lakewood Planning Board filed an Answer denying all allegations and also claiming in affirmation that Plaintiffs’ complaint fails to state a cause of action upon which relief can be granted; the claim set forth by plaintiffs is not a proper subject of equitable relief; and furthermore, relief should be denied due to the "unclean hands doctrine".

The unclean hands doctrine applies to cases where the plaintiff has acted unethically in connection to the circumstances that have led to the suit. Its intent is to keep a person from abusing the justice system in order to benefit from a situation they created by acting in bad faith.

On April 19th, Sudler's attorneys served Mr. Gasiorowski with a Notice of Frivolous Lawsuit and Demand for Voluntary Dismissal. The notice placed Mr. Gasiorowski on notice that Sudler deemed the entire lawsuit as a meritless complaint, filed solely for the purpose of harassment and delay.

Sudler's attorneys noted that already at the Planning Board's public hearing, their professionals already explained clearly why Lake Terrace's claims were meritless, yet, "they (Lake Terrace) egregiously continued to advance the flawed contention that the Board acted without jurisdiction... This scheme of interchangeable objectors was undoubtedly intended to stymie Sudler's good faith efforts to obtain necessary land use approvals from the Board and subsequently create protracted litigation in retaliation for the unrelated lawsuits brought by Defendants."

"Plaintiffs acts of vengeance have harassed Sudler, as well as delayed the perfection of Defendant's approvals, caused the incursion of substantial attorneys' fees and costs of suit, and severely hindered Sudler's ability to secure funding. These unjustified harms were the foreseeable consequence of Plaintiff's decision to pursue this meritless cause of action," the letter continued.

The notice concluded by placing Mr. Gasiorowski on notice that he previously represented Sudler on their other land use matters, and he therefore received confidential information from them. This gives him a conflict and he should recuse himself from the matter. If he does not recuse himself immediately, Sudler will make an application to the court for disqualification.

At one point it seemed that Mr. Gasiorowski was backing down as he was 2 weeks late in filing his trial brief and he didn't even seek an extension of time to file his trial brief. At that point, on July 28th, Sudler filed a motion seeking to dismiss the case with prejudice, writing, "Plaintiffs lack of attention to a lawsuit it initiated should not prejudice our client who is, in fact, prejudiced by the mere continued pending of this case - which is nothing more than 'an improper attempt to create protracted litigation as a retaliatory measure for the ancillary disputes between the parties' - as this litigation has delayed Sudler’s ability to perfect its approved subdivision and secure financing."

Later that same day, Mr. Gasiorowski wrote to the court that he was out for a medical procedure and he requested a two week extension to file his trial brief. This request was granted.

As previously reported here on FAA News, Lake Terrace charged on when Sudler returned to the Planning Board to seek an extension to their Minor Subdivision. Typically an extremely routine matter, however, in this case, Lake Terrace retained Attorney Jan Meyer who tried telling the Board that they should deny this extension because "Sudler is suing the Township" (as defendants to the Lake Terrace and Bnos Brocha lawsuits).

Planning Board Attorney John Jackson responded that it appeared to him that "the owners of Lake Terrace were meddling in this very minor extension simply as retaliation against Sudler."

The Board then approved the extension, noting that Sudler was not asking for anything out of the ordinary and that there were no grounds for them to deny the extension.

From the fact that Mr. Meyer represented the matter at the Lakewood Planning Board, and that the court trial was delayed, it appeared for a bit of time that Lake Terrace was either withdrawing completely, or that Mr. Gasiorowski was recusing himself from the matter.

But not for long...

On August 25th, Mr. Gasiorowski filed a 45 page Trial Brief, completely ignoring Sudler's Frivolous Litigation claim and their conflict of interest.

Judge Ford held a trial on the case on November 28th.

Judge Ford has just released a decision upholding the Planning Board's approval of the minor subdivision.

Judge Ford was not persuaded that recording of an easement to traverse lands to access an unimproved lot is a supplemental use not previously approved as "the easements do not alter the character or the use of the joint access drive". Therefore, no Use Variance was required. Additionally "the public notice in this matter is on its face adequate... [and] the Planning Board properly found it had jurisdiction to consider the application because it found the notice given was adequate."

In response to Mr. Gasiorowski's claim that a subdivision cannot be granted in a case where the new lot would be landlocked, Judge Ford noted that Lakewood Township's ordinance clearly prohibit issuance of a building permit in a case where the lot does not abut a public road, however this does not restrict granting of a minor subdivision for a landlocked lot.

Judge Ford also upheld the Board's Resolution of Approval, noting that resolutions are required to include "factual findings based upon the evidence, testimony, exhibits and review by its own Board experts", and although this Resolution "is not expansive", that was for one simple reason - because "this was not a complicated development approval."

Interestingly, during the trial the Planning Board attorney raised a curious claim which Judge Ford also pushed back on.

During the trial Mr. Gasiorowski raised additional deficiencies with the notice and regarding the need for a Use Variance, which he did not raise during the Planning Board's hearing. The Planning Board attorney attempted to dismiss those claims as "they were not argued during the Board hearing." In response Judge Ford wrote "all challenges to the notification process are jurisdictional and therefore must be considered must be considered by the court in determining any threshold challenges to the legitimacy of Board action... Any person interested in the application reserves the right to raise legal objections to the notice and the adequacy of the Board's actions."

This is not the only retaliation lawsuit filed by Lake Terrace against Sudler.

In August 2021, Lake Terrace filed suit against Clayton after they discovered that there were 3 structures in Clayton's parking lot which appeared to contain cats. Apparently, cat breeding is not a permitted use under the Township ordinances.

Lake Terrace claimed that these cats were a nuisance to them and their patrons, and may have even been a fire hazard, as well as a health and safety risk given the potential for diseases. They further claimed that they were concerned about animal cruelty as the crates did not contain heating or cooling capabilities.

Prior to filing the lawsuit, Lake Terrace notified Township Officials as to the "Health Code violations" taking place, and miraculously, in under 24 hours, the police department and inspection department responded to investigate. A manager for Clayton advised that they were aware and they were attempting to get a third party to remove the cats. As the Township did not do any further enforcement, Lake Terrace filed suit seeking injunctive relief to restrain Clayton from having any cats on their property until the proper health department inspection could take place.

Not surprisingly, Superior Court Judge Frances Hodgson tossed that case right out.

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1 comment:

Anonymous said...

Lake Terrace has rightfully earned its reputation to be a bad faith actor. Revenge can only be sweet if they win. But unfortunately, the truth gets in their way, so they keep losing.