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Yeshiva Toras Chaim today filed a Motion for Reconsideration of Judge Ford's ruling overturning Lakewood Township Planning Board's approval of their dormitory expansion.

Judge Ford previously ruled that the Board lacked jurisdiction to approve a dormitory which the Township Committee has not deemed to be a permitted use in the residential zoning district.

Yeshiva Toras Chaim, located at 999 Ridge Avenue, received its original Site Plan approval from Lakewood Township's Planning Board back on May 21, 2002, for a single building for the Mesivta and Beis Medrash, with a dormitory for the 12th grade and Beis Medrash.

In the spring of 2020, the yeshiva submitted a new application to the Planning Board for a new building on a separate lot which is adjacent to their existing building, for a major expansion of their dormitory and dining room.

The neighbors from the adjoining Ridge Avenue developments attempted to reach out to the yeshiva administration to discuss some concerns with the plans and offer compromises, to no avail.

In July 2020, shortly before the application was first scheduled to be presented at a public hearing to the Planning Board, the neighbors retained Attorney Sean Gertner to represent them in opposing the application.

Mr. Gertner wrote to the Board that dormitories are not a permitted use in the zone under the Township's zoning ordinances, and therefore the Planning Board lacks jurisdiction to hear the application which requires a Use Variance from the Zoning Board. Mr. Gertner noted that the dormitory can't even be considered as an accessory use to the existing school as the new building is proposed to stand on its own lot so it would be a principal use of the lot. Mr. Gertner further noted that it appeared that Board Engineer Terry Vogt agreed with his analysis as Mr. Vogt, in his engineering review letter did not issue a fact finding that the use is permitted under the zoning ordinances.

Due to this pressure, the application was carried.

The application brought back to the Board in January 2022.

The application for the 4-story building was submitted as a conforming use, but with seeking a minimum combined side yard setback of 23.57 feet where 25 feet is required, buffer variance relief as no buffer was proposed where a 20 foot wide buffer is required from residential uses and zones, and Parking setback relief where parking was proposed in the buffer and no parking is permitted within any required buffer.

The yeshiva retained Red Bank Attorney Matthew Fiorovanti of Giordano, Halleran and Ciesla to represent their application at the Planning Board.

The neighbors retained Teaneck Attorney Jan Meyer to represent them in objecting to the application. Mr. Meyer wrote to the Board that he echos the sentiments of Mr. Gertner's earlier letter, and that he wanted the application to be sent to the Zoning Board for a determination as to which Board has jurisdiction over the application.

At the public hearing, Mr. Meyer immediately raised the jurisdictional issue that it was his opinion that this dormitory is not permitted under Lakewood's zoning ordinances and he wanted the application to be referred to the Zoning Board for a determination as to jurisdiction.

Planning Board Attorney John Jackson responded by contending that the Planning Board had already "been to court on this issue," because the Board was sued over another dormitory approval, and that the Board has the authority to deem a dormitory as an accessory use.

Mr. Meyer further requested that due to difficulties he faced hiring an Professional Planner in the short number of days since the legal notice was published, the application be postponed so he could have an opportunity to bring a Professional Planner to properly present his case. The Board rebuffed these requests.

A number of neighbors spoke up. They noted that, shortly before the public hearing, the architectural plans were conveniently revised to call the proposed dining room a "study hall / dining room" so it would look more like a "permitted school" than a "non-permitted dormitory."

The neighbors emphasized that they have nothing personal against the Yeshiva administration, rather they have some concerns about the scope of the application as to privacy, height, windows and sound and which sought a variance to completely eliminate the required 20 foot buffer. They noted that currently, the students make noise late at night which keeps the residential neighbors from sleeping properly. The neighbors presented several compromises as to the specific location of the building that would work better for them.

After a contentious hearing, with the school's supporters shamelessly booing the neighbors' concerns, the Board voted to approve the application, with conditions that the applicant shall plant two staggered rows of 6-8’ arborvitae at 6’ on center on the east and south sides; the applicant will frost all windows facing neighboring residential properties on not only the new school building but also on the existing school building. The frosted windows will be designed in such a manner that the opening will be restricted so as to not provide visibility onto neighboring properties but will not conflict with fire regulations; the applicant will construct a 12-foot high structure wall around the back and sides of the subject property facing the east and south sides; the yeshiva will not be rented out for any purpose when school is not in session; the basement will be used for storage and all outside storage and containers for refuse and recycling will be enclosed; and the applicant will resubmit this entire proposal for re-approval should there be any material deviation from the terms and condition.

On March 1, 2022 the Board memorialized its Resolution of Approval which states: The Board recognized that in Lakewood specifically, a dormitory has been found to be an accessory use to a school. By granting the application, there will be no detriment to neighboring properties; there will be no impairment of light, air and open space to and from adjacent properties; there will be no detriment to the public good; and this development plan will not substantially impair the intent and purpose of the municipal zoning ordinance and master plan.

On March 25, Attorney Meyer, representing the neighbors, filed a lawsuit seeking to overturn the Planning Board's approval.

The Complaint in Lieu of Prerogative Writs, filed in Ocean County Superior Court, charged that "it is undisputed that dormitories are not a permitted use in an R-15 zone in the Township of Lakewood. Accordingly, under ordinary circumstances, the construction of a standalone dormitory would require a use variance, which must be sought before the Zoning Board of Adjustment, not the Planning Board. The Planning Board purported to hear the Subject Application on the theory that the dormitory was an “accessory use” to the school building, which would be a permitted use."

The lawsuit takes issue with Mr. Jackson's contention that "we've been to court already on this issue," noting that the previous dormitory lawsuit was settled out of court and not actually decided in court and therefore the Board does not have any "been there, done that" legal argument.

"Moreover, Attorney Jackson indicated that he had provided a brief he had written regarding this matter. However, upon information and belief, such brief had not been made available to the public or Attorney Meyer, as the Objector’s attorney, in advance of the hearing," the lawsuit asserts.

In addition, the lawsuit charges that the Board refused to grant the objectors a reasonable postponement so they could retain a licensed Planner and potentially other experts to provide testimony about the jurisdiction of the board and to testify as to the plans in its design.

"In fact, Mr. Meyer was asked by the Board why he did not bring his experts to that very same meeting. Good reason was brought to the Boards attention that Mr. Meyer had tried to retain experts for that night but several of the expert he contacted were unavailable and engaged elsewhere that evening. The requests were denied, and the application was “rushed through” thereby limiting the objector’s rights to bring meaningful testimony to the Board and develop the record in this matter," the lawsuit contends, emphasizing that this issue was exacerbated in that, "In response to the neighbor’s concerns of privacy and noise, the Planning Board required, as a condition of approval, that the applicant must construct a 12 foot wall on the back and sides of the Subject Properties. This wall was nowhere in any of the plans submitted, and was added on an ad hoc basis, simply based on discussion with the Planning Board. The Planning Board acted improperly in making ad hoc changes to the published plans as this sort of ad hoc amendment to plans being considered which, of note, requires a specific variance regarding fence height, is wholly improper."

The lawsuit charges that the Board acted improperly as they "did not permit Mr. Meyer to substantively cross examine Rabbi Slomovits, a witness who was presented by YTC in favor of the application. Moreover, the Planning Board improvidently cut off Mr. Meyer during his closing arguments, not permitting him to make further arguments. In fact, at one point during the hearing, due to the Boards eagerness to rush the application through, and close the hearing to an almost foregone conclusion of a vote in favor of the applicant, they almost disallowed Mr. Meyer to cross examine a witness."

The lawsuit also argues that by hearing testimony mainly from Brian Flannery - a professional planner and not a representative from the yeshiva - "the testimony... constituted a net opinion, and should not have been considered by the Board."

All together, the lawsuit charged that "the Plaintiffs have been adversely affected and the Plaintiffs have suffered a manifest injustice created by the defendant, Planning Board’s, arbitrary, capricious and unreasonable application of their planning use powers."

The lawsuit sought a court order "reversing the decision of the Planning Board, as set forth in the Resolution, to deny any and all variances requested by the defendants; attorney's fees; costs of suit; such other relief as the Court deems just and equitable."

As previously reported here on FAA News, back in November, Mr. Meyer filed a Motion for Summary Judgement against the Yeshiva, arguing that 1) the Board did not have jurisdiction to hear the Application which required a Use Variance before the Zoning Board; 2) the Board acted arbitrarily and capriciously in denying a requested adjournment of the Subject Hearing, such that the Objectors could obtain an expert.

The Yeshiva, represented by Mr. Fiorovanti, filed a Cross-Motion for Summary Judgement, arguing that the Planning Board did have jurisdiction to approve the dormitory simply because "dormitories have always been considered an accessory use of a school by the Township" (despite that the Township's ordinance does not specify expressly permit dormitories as an accessory use).

Mr. Fiorovanti also charged that Mr. Meyer asked numerous jurisdictional questions during the Board's proceeding "simply setting the stage for future litigation."

"First, the Board did not act unlawfully in exercising jurisdiction over the Application, since a dormitory is customarily incidental and subordinate to a school use in Lakewood Township. Indeed, the Board’s attorney, John Jackson, Esq., introduced into the record numerous resolutions from prior applications in which the Board determined that a dormitory is an accessory use of a school.

"Second, the Board did not act unlawfully in denying Mr. Meyer’s last-minute adjournment request, made for the first and only time after YTC had completed its presentation and after the Board had made clear that it would not accept Mr. Meyer’s legal and factual arguments. Yet even if the Board should have granted a continuance to allow Mr. Meyer to engage an unidentified planning expert, such failure was harmless error, since no such planning testimony would have changed the Board’s conclusion, made with the benefit of legal advice from its attorney, that a dormitory was a permitted accessory use of a school in the Township.

Attorney Jonathan Leitman of the Office of Jan Meyer Esq responded with Opposition to the yeshiva's Cross-Motion.

Mr. Leitman argued that while the Defendants claim that a dormitory is permitted as an accessory use to a school, they "fail to cite to a single case in which a dormitory is found to be an accessory use to a school," rather they argue very simply that "the fact that they have previously granted applications for dormitories as accessory to a school means that such use is proper. This is absurd. The fact that the Board has previously exceeded its authority does not give it license to continue to do so indefinitely. Nor does the fact that a handful of schools in Lakewood have dorms or have applied to add dormitories mean that the UDO must logically permit dormitories in any location whether schools are permitted. It simply shows the unexceptional proposition that some small percentage of schools want to add dormitories. It certainly does not show that dormitories are so inextricably linked to schools that saying that schools are permitted necessarily means that dormitories must be permitted."

"There is simply no reason, whatsoever, that “logic and reason” would necessitate permitting dormitories in any location that schools are permitted. Nor is there any reason that a dormitory is so necessary to schools that the UDO cannot possibly to intended to exclude them. The overwhelming majority of schools- nationwide, statewide and countywide, do not use dormitories. It would be wholly logically consistent for the
UDO to permit schools but not dormitories.
Indeed, logic and reason dictate a school with a dormitory to be materially different from a school without a dormitory. Schools without a dormitory are, primarily, neighborhood schools, serving the neighborhood. Schools with a dormitory can draw
students from beyond the narrow geographical area. Schools without dormitories largely cease to make noise at the end of the school day. Schools with dormitories create noise around the clock. In schools with dormitories, excepting certain defined times, students are primarily in class and well supervised. In schools with dormitories,
the nature of the supervision of the students, on the whole, drops precipitously at the end of the school day. It is wholly logical for the Ordinance to provide that a school might be appropriate in areas that schools with dormitories are not.

"The UDO lists, as accessory uses, a private residential garage, a shed, a greenhouse, a private swimming pool and a small home occupation. Even assuming, arguendo, that this list is not exclusive, it is certainly illustrative. The claim that a large student dormitory is of a similar character to the
listed items in the UDO as valid accessory uses simply cannot be made with a straight face."

Mr. Leitman also responded to the arguments that the Board can make its own determination as to whether or not they have jurisdiction on a matter.

Mr. Leitman quoted case law that found that the question of whether the board has jurisdiction is a legal one. “A board's determination of a legal issue... is entitled to no particular deference since the courts are equipped to resolve issues of law.” Accordingly, the standard of review regarding the question of jurisdiction, which is wholly legal in nature, is plenary, with no deference due to the decision of the Board. Therefore, the question of whether a dormitory is an accessory use and the question of whether the failure to notice the
exacerbation of the previously granted resolution, as pure questions of law, must be decided by the court without deference to the decision of the Board.

Finally, Mr. Leitman also argued that the Plaintiffs should be granted summary judgment that the Board abused its discretion in failing to adjourn the Subject Hearing.

"The Defendants seek to infer from the fact that the Mr. Meyer raised his request to adjourn the conference after the testimony of the planners that this objection was only raised because it appeared the Board would decide to ignore Plaintiff’s jurisdictional objection. This is patently absurd. Mr. Meyer sought to enter preliminary objections
prior to the Board hearing the subject application, but was denied the opportunity to do
so," he concluded.

As the news was first broken here on FAA News, at a hearing held in January, Judge Ford granted Summary Judgement to the neighbors, saying that the Planning Board lacked jurisdiction to approve dormitories as they are not a permitted use in this residential zoning district, and therefore a Use Variance from the Zoning Board would be required.

Judge Ford was not persuaded by the fact that the Planning Board has previously approved numerous dormitories, including in Toras Chaim's existing building, simply stating "numerous wrongs don't make a right."

Judge Ford also highlighted the fact that the Township's Zoning Ordinances expressly permit dormitories only as part of a Planned Educational Campus, which requires a campus of 3 acres and is permitted for Schools of Higher Education which are accredited to provide both undergraduate and graduate degrees. "It makes sense to permit a dormitory as part of a secluded campus but not in middle of a residential neighborhood," Judge Ford concluded.

Yeshiva Toras Chaim, represented by Mr. Fiorovanti, today filed a Motion for Reconsideration.

Mr. Fiorovanti wrote:

"In finding that a dormitory is not a permitted use of a school in Lakewood, the Board substituted its own judgement for that of the Board regarding the customary relationship between dormitories and schools such as Yeshiva Toras Chaim (YTC).

"The Board's determination that dormitories are in fact customarily incidental and subordinate to schools such as YTC, which is both a high school as well as an accredited institution for higher learning, was entitled to substantial deference by the court in light of the Board's unique knowledge of local conditions and can only be reversed if arbitrary, capricious or unreasonable. The Board knows more than the court about how all-boys religiously oriented institutions of higher education such as YTC operate with the use of dorms. The Board knows that a dormitory is essential to such a school - without a dormitory, YTC can not exist. Yet the court disregarded the Board's findings and instead independently concluded that dorms are not a permitted accessory use of schools in the Township. Such error warrants reconsideration by the court.

"In addition to applying the wrong standard of review, the court also erred in independently finding that dormitories are not an inherent component of a school or, at the very least, an accessory use of a school. In concluding that a dormitory is not an accessory use of a school, the court clearly misapplied the "accessory use" test. The court improperly inferred that because the Township specifically allowed for dormitories as a principal permitted use in connection with a Planned Educational Campus but did not specifically authorize dormitories in the R-15 zone, the Township must have intended to prohibit dorms in the R-15 zone. Such interpretation is contrary to well-settled New Jersey law, which found that an ordinance's list of permitted accessory uses is not exhaustive, in recognition of the impossibility of listing every possible accessory use. So long as the litigated use is "customarily incidental and subordinate" to the principal use, it is permitted.

"The court did not perform this analysis. The court did not consider the unique facts regarding how schools such as YTC operate, including the fact that the students do not reside in the immediate location but come from locations all around the world...

"The court improperly equated YTC to a traditional, secular public high school in concluding that dormitories are not an accessory use. Such analysis was contrary to the factual record before the Board, and warrants reconsideration.

"The court's decision in this regard will have broad impacts in the Township. There are dozens of schools with dormitories located in the Township. By virtue of the court's ruling, every school with a dormitory has been converted into a preexisting, non-conforming use. If any of these schools wish to expand to accommodate the growth of the student body - like YTC in this case - the school would need to go to the Zoning Board for a Use Variance, which requires satisfying an enhanced standard of proof of the positive and negative criteria. The court's ruling therefore substantially burdens the existing community by placing a severe restriction on an existing school's ability to expand or modify its facilities.

"By applying the incorrect standard of review and erroneously applying the "accessory use" test under New Jersey law, the court has upended a well established custom in Lakewood... The court's order should be reconsidered, and the Board's approval of the site plan approval for the construction of a school with a dormitory should be affirmed.

"In the event the court does not affirm the Board's approval, the court should nonetheless remand the application to the Board for more specific findings of facts regarding the manner in which a dormitory is customarily incidental and subordinate to schools such as YTC. Because of its unique knowledge, the Board did not require detailed proofs regarding the manner in which religiously focused schools in Lakewood operate and whether such schools typically have dorms, since the Board was well aware of this fact. The Board fully understood this fact. Yet, to ensure a complete record below, the court remand to allow YTC to present detailed testimony as to why dorms are a necessary part of its school."

The neighbors have not yet responded to this just filed Motion.

While the decision in this case is 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. And it has already resulted in a lawsuit and push back from the Board against hearing pending dormitory applications.

As previously reported here on FAA News, just yesterday, following Judge Ford's decision in this matter, another lawsuit was filed seeking to overturn the Lakewood Planning Board's approval of Yeshiva Birchas Chaim's application to expand their current Mesivta campus with a Beis Medrash and dormitory building for approximately 85 bochurim.

This court ruling also majorly jeopardizes the Planning Board's recent approval of a dormitory 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 that approval.

Based on this court decision, as previously reported here on FAA News, the Planning Board has pushed back against hearing Migdal Bais Yaakov's pending dormitory application.

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