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Developer Franklin Shapiro has filed a lawsuit seeking to overturn the Lakewood Planning Board's denial of his Minor Subdivision approval.

The application, which was presented to the Board back in September, sought approval to subdivide the rear yard of 30 Independence Court into a second lot which would have a new single family house and driveway on the north side of James Street, just west of its signalized intersection with Sunset Road.

This driveway would not require any backing in or out, as they would provide an oversized driveway with a hammer-head turn-around.

The application included a proposal of a 2 foot wide right-of-way dedication to Ocean County as well as an 8 foot wide right-of-way easement to Ocean County along the project’s County Highway frontages, and that this would permit the county to widen James Street to provide for a new, right turning lane onto Sunset Road.

The application was represented by Attorney Adam Pfeffer and Engineer Brian Flannery. They testified that the application has already received favorable consideration from the Ocean County Planning Board.

As previously reported here on FAA News, the Board denied the application due to safety concerns with the proposed new driveway directly onto James Street, with left turns permitted into and off from James Street, just west of the busy signalized intersection. Board members opined how dangerous left turns here are.

Several neighbors spoke up in opposition to the application, citing drainage concerns on their own property due to the loss of trees on the applicant's property, and traffic congestion and safety concerns.

The application was originally submitted with one single existing non-conformity which the developer proposed to retain with the Minor Subdivision.

The existing tract which is to remain contains a two-story single-family frame dwelling with a second story deck. No variances were requested for the proposed new home, however, to make room for the Subdivision, this lot proposed a Minimum Rear Yard Setback Variance of 7 feet for the second-floor deck, where 20 feet is required.

Mr. Flannery testified that this Minimum Rear Yard Setback Variance is an existing non-conformity because this house built before the Township Committee amended the ordinances to require all decks to be built outside the setbacks.

The existing home also required a parking variance as the house now requires 4 off-street parking spaces and the existing driveway only contains 2 off- street parking spaces. This is also an existing non-conformity as this house was built prior to enactment of the State's Residential Site Improvements Standards which now require additional parking for new residential homes.

Seeing as they were about to get denied, Mr. Flannery agreed to eliminate these two existing non-conformities.

In response to the Board's safety concerns regarding the proposed James Street driveway, the applicant's professionals attempted to request that the Board table the application so they could redraw the plans to eliminate the driveway from James Street and instead provide a driveway easement through the existing driveway on Independence Court.

The Board denied the request to table the application, and instead voted to deny the application. Attorney Adam Pfeffer tried to interject that "this is a fully conforming application which the Board does not have the authority to deny." Board Member Eli Rennert retorted that there was an existing setback variance which the application sought to affirm and the Board certainly does have the legal authority to deny affirmation of a variance. Board Chairman Moshe Neiman noted that, as reported here on FAA News, the Board had recently denied a "fully conforming" application on Fourteenth Street, citing safety concerns, and here as well there certainly is a safety concern.

Subsequently, on October 25, 2022, the Board memorialized their Resolution of Denial which states:

"After hearing the testimony provided by the applicant and the applicant’s experts and after hearing comment from the general public, and after reviewing the application, maps and exhibits as provided, the board discussed the merits of this application and so finds that:
i. While the applicant does not require any variances, it is the duty of the planning
board to weigh the evidence and to exercise its discretion in the event of significant concerns on the part of the Board. The Board ultimately rejected the application on the basis of significant traffic concerns in light of the shape of the lots at issue and the street and traffic patterns in the nearby area. The Board found that an approval of this application would have significant detrimental effects on the safety of the neighborhood. The Board further found that the applicant’s proposal does not further the purposes of zoning pursuant to N.J.S. 40:55D-2 in that the applicant’s proposal is not the best planning alternative, and the proposed development would not secure
safety from fire, flood, panic, and other natural and man-made disasters.
ii. Accordingly, the Board hereby denies the applicant’s request for minor subdivision

Attorney Adam Pfeffer, representing Mr. Shapiro has now filed a lawsuit seeking to overturn this denial.

The Complaint in Lieu of Prerogative Writs, filed in Ocean County Superior Court, charges that by removing the request for variance relief for the existing deck, "Plaintiff complied in all
respects with the land use ordinances of the Township of Lakewood, and did not require,
nor did it seek any variances therefrom. The engineer further testified that the applicant would provide a driveway easement across the existing home lot and provide access to Independence. Notwithstanding the fact that Plaintiff’s application was “as-right” the Planning Board
adopted a Resolution of Denial."

The lawsuit alleges that once the developer made the application"by-right," the Planning Board did not have the authority to deny the application pursuant to PRB Enterprises, Inc. v. South Brunswick Planning Board, 105, N.J. 1 (1987), and its progeny, and accordingly "the Planning Board has acted to the detriment of the Plaintiff by denying their application for minor subdivision approval [and] the Resolution of Denial of the Planning Board is arbitrary, unreasonable and capricious."

The lawsuit seeks a Court Order declaring the Resolution of Denial to be arbitrary, unreasonable and capricious, and void as a matter of law; compelling the Planning Board to adopt a positive
Resolution of Approval to approve Plaintiff’s Application, awarding Plaintiff’s attorneys ‘fees and costs of suit; and for such other and further relief as may be just.

Planning Board Attorney Jillian McLeer has filed an Answer denying all allegations and demanding that the Plaintiff’s Complaint be dismissed with prejudice and that the Planning Board be awarded attorney’s fees, costs of suit and such other relief as the Court may deem fair, equitable and just.

Ocean County Superior Court Judge Marlene Ford has now scheduled a pretrial status conference on the matter for Thursday, February 16. All parties will need to file pretrial memorandums by February 9. They were also directed to submit a transcript of the Planning Board public hearing of the application.

The trial date is likely to be determined at the pretrial status conference.

This is not the only denial of a "by-right" application the Planning Board is fighting to defend.

As previously reported here on FAA News, Solomon Halpern of Besadar Holdings, represented by Attorney Rob Shea, is suing to overturn the Planning Board's very uncharacteristic denial of a "mostly conforming" application for 9 new single family homes on a cul-de-sac road along the southwest side of Fourteenth Street, southeast of Curtis Lane.

The neighbors who originally opposed the application at the Planning Board public hearing are now intervening in this lawsuit. Initial trial briefs are due later this week. The trial date is scheduled for March 27.

Additionally, as previously reported here on FAA News, Joseph Bitton, represented by Attorney Adam Pfeffer, is suing to overturn the Planning Board's denial of his application on East 8th Street after he refused to provide a proper cul-de-sac bulb, which the neighbors opined was necessary for the safety of the neighborhood.

The trial for this case is also scheduled for March 27.

Lakewood Township's taxpayers will fund the legal fees incurred by the Planning Board to fight the lawsuit.

The major legal question in these lawsuits will be as to what basis, if any, the Board has, to deny seemingly by-right applications on the assertion that such applications do not "further the purposes of zoning."

If the Planning Board does win these cases it would represent a landmark victory for land use boards statewide.

Regarding applications with variances, the New Jersey Municipal Land Use Law (40:55D-70) provides that "no variance or other relief may be granted... without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance."

However, for fully compliant applications, the MLUL (NJSA 40:55D-46b) provides that "the planning board shall, if the proposed development complies with the ordinance and this act, grant preliminary site plan approval."

The New Jersey Supreme Court, in a 1994 case known as Pizzo Mantin Group vs. Twp. of Randolph, declared that, without clear standards established in the local ordinance as to what is prohibited and what is required, board members are not free to unilaterally utilize their own judgment, as that would be an invitation to inconsistency, controversy and arbitrary action by boards, and therefore, unless the applicant fails to abide by the standards in the ordinances, a board has no choice but to grant an application.

In this case law, the State's highest court declared that Board members utilizing their own judgement to make inconsistent decisions is the "antithesis" of the Municipal Land Use Law's intended framework which was that there be consistency, uniformity and predictability in the subdivision approval process.

The New Jersey Appellate Division later expanded on this ruling in a 2001 case known as W.L. Goodfellows and Co. vs. Washington Township Planning Board, where the planning board had denied a site plan application for "lack of an adequate drainage plan" as the application relied upon a drainage easement, which the applicant had not yet secured, to carry storm water across adjacent property.

The Trial Court upheld the Board's denial, however, the Appellate Division later reversed that decision, citing the Supreme Court ruling in Pizzo Mantin, and noting that because nothing in the local ordinance required that necessary easements be secured prior to site plan approval, the builder could not have anticipated such a requirement from a reading of the ordinances, and therefore the requirement was one which the planning board imposed without any ordinance authority.

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1 comment:

Anonymous said...

It's the wrong place to shtup a house in. Sorry, you're wasting your time in court.