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 has only deemed dormitories to be a permitted use when its part of a Planned Educational Campus, the Planning Board lacked jurisdiction to approve the application.
Judge Ford was not persuaded by the fact that the Planning Board has previously approved numerous dormitories, including in Toras Chaim's existing building, emphasizing, "numerous wrongs don't make a right, and it's not up to the Lakewood Planning Board to decide what's appropriately included in schools - the Township Committee's zoning ordinances make that determination."
"The fact that there is a practice in Lakewood to approve these types of applications does not diminish the fact that a freestanding building which is sizable enough to provide sleeping accommodations for 180 students is not a reasonable accessory use to a school," Judge Ford stated.
While the decision in this case is technically not legally binding on future applications, the outcome of this lawsuit does majorly set the stage for neighbors of future Planning Board applications to safely argue that Judge Ford has already ruled that the Planning Board simply lacks jurisdiction to approve dormitories even as an "accessory use" to a school.
The decision in this case majorly jeopardizes the Planning Board's recent approvals of dormitories for Yeshiva Birchas Chaim on Vine Avenue and for Yeshiva Mishkan Hatalmud (Rav Ehrlich's yeshiva) on Joe Parker Road, as it is still within the 45 day timeframe to file a lawsuit to overturn those approvals.
The decision in this case also majorly jeopardizes the pending dormitory applications of Kollel Kodshim, especially because Attorney Jan Meyer (who won Friday's case) is currently representing neighbors against Kollel Kodshim's Planning Board application, and Migdal Bais Yaakov.
Just following this ruling, neighbors of Migdal Bais Yaakov have retained an attorney to oppose the application on the basis that it includes a dormitory and that based on Judge Ford's very recent ruling, the Planning Board lacks jurisdiction to continue hearing the application.
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 is now applying 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 with a gymnasium and pool.
According to the architectural plans and traffic study that was submitted, there will be 27 classrooms, 2 tutor rooms, 1 library, 1 meeting room, 7 offices, and a 3,495 sq foot dining room, which all together require 38 parking spaces, while 106 spaces will be provided. A total of 675 students will attend the school and will be dropped off by 14 school buses. 9:00am would be the proposed commencement time for all students. The bus circulation and staging plan shows that only 5 buses can unload in front of the school building.
This application seeks submission and design waivers, as well as bulk variances for the provision of buffers and parking setbacks.
Application SP 2498 is for construction of an approximately 27,263 sq foot school building with a dormitory, and a gymnasium, and pool.
According to the plans submitted there will be 5 classrooms with a dormitory for 200 students. This school requires 10 parking spaces, while 31 will be provided.
There will not be any room in this driveway for school buses, so the application seeks a variance for bus loading and unloading spaces which is a requirement for all schools. The application also seeks several submission and design waivers, as well as bulk variances for the provision of buffers and parking setbacks.
Neighbors who are opposed to the application have now retained Paramus, New Jersey-based Attorney Peter Humblius who wrote to the Board that as the applications include a dormitory, based on Judge Ford's decision, the application requires a Use Variance which can only be granted by the Zoning Board and not by the Planning Board.
Moreover, Migdal Bais Yaakov is coincidentally represented by Attorney Sean Gertner, who also represented objectors to Yeshiva Toras Chaim's 2020 Planning Board application.
In July 2020, Mr. Gertner wrote to the Planning Board regarding Yeshiva Toras Chaim's pending dormitory application, "it is not disputed that the Township ordinance defining the residential districts... permits ... schools... In addition there are 5 conditional uses permitted in the zone and there are 5 accessory uses specifically permitted in the zone, none of which list or permit dormitories. Accordingly... the subject application requires a Use Variance [from the Zoning Board] to allow a dormitory on the subject property."
Mr. Gertner concluded his letter by opining that, at the very least, the matter should be referred to the Zoning Board for an interpretation and determination.
Mr. Humblius now wrote to the Board that "Migdal's applications require and call for determinations and hearings before the Lakewood Zoning Board, rather than before the Planning Board. In reviewing Migdal's applications, it has come to my attention that this issue has been brought before the Board numerous times. In fact, Sean Gertner Esq who now represents Migdal but used to represent objectors to Toras Chaim's dormitory application, authored a letter on this very issue and agreed that dormitory applications such as Migdal's must go before the Zoning Board as dormitories are not a permitted accessory use. Attorney Gertner's letter is very explicit and I wholeheartedly agree with his analysis, findings, and conclusions as it pertains to Migdal's applications."
The Planning Board is scheduled to discuss the matter tonight. Their meeting begins at 6:00pm at Town Hall, 231 3rd Street. The meeting is open to the public.
Mr. Gertner's July 2020 letter is below:
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