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As Lakewood's famous Lake Terrace hall awaits rescheduling of a Township Zoning Board hearing on their Use Variance application to finally legalize their banquet and concert hall, their saga in Superior Court continues as Clayton Associates recently filed a Motion for Reconsideration of the Stay on the litigation.

Lake Terrace's attorney has now responded with Opposition to the Motion - using arguments which were just recently tossed out by Judge Ford in another matter.

Additionally, Lakewood Township attorneys are using taxpayer dollars to defend Lake Terrace.

Lake Terrace is currently embattled by 2 separate lawsuits filed against them by their industrial neighbor Clayton Associates, which allege that Lake Terrace never received proper approval from the Township's Zoning Board.

Lake Terrace is located in a zone designated by the Township as the Airport Hazard area and that does not permit schools nor banquet halls. Therefore, either use would require a Use Variance approval from the Township's Zoning Board of Adjustment.

Back in 2005, Beis Rivka Rochel received Zoning Board approval to change the use of an office building located at 1690 Oak Street into a "private school with an assembly hall."

At the Zoning Board hearing, School Dean Rabbi Shlomo Chaim Kanarek testified that his proposed "assembly hall" would be used for High School plays. There was never any mention of weddings and concerts.

The Zoning Board's 2005 Resolution of Approval for the "school and assembly hall" clearly states that if there are any changes to the project as approved, the applicant shall "resubmit any such changes to this Board for review and determination." No application for an amended approval was ever submitted to the Board.

Somehow, after this Zoning Board approval, the Lake Terrace wedding and concert hall was built, and in 2010, unexplainably, Lakewood Township issued a Certificate of Occupancy for a banquet hall, despite the owners never receiving a Use Variance from the Zoning Board for this banquet hall.

In December 2020, Clayton Associates, represented by Attorney Rob Shea, filed a lawsuit seeking to shut down the banquet hall on the basis that it never received the required Use Variance from the Zoning Board.

After an initial injunction hearing on the matter, on February 3, 2021, Ocean County Superior Court Judge Marlene Ford signed an Interim Order permitting Lake Terrace - pending the outcome of the lawsuit - to continue hosting weddings, but with certain restrictions. That interim order, as well as several additional interim orders, continue to permit operation of the banquet hall with certain restrictions on the on-street parking as well as the maximum number of guests.

In December 2021, after learning that Lake Terrace was also hosting large concerts, Clayton Associates filed a separate lawsuit seeking to ban all concerts at Lake Terrace on the basis that Lake Terrace never received Township Zoning Board approval for a "concert hall". Superior Court Judge Craig L. Wellerson granted an interim Order that concerts are not to be held at all at Lake Terrace. (The concert hall issue was deemed differently than the banquet hall issue as the Township did at one point issue a Certificate of Occupancy for a banquet hall, they never issued a Certificate of Occupancy for the concert hall use and therefore Lake Terrace had no legal standing to retain that non-permitted use).

On March 16, 2022 Lake Terrace filed a Motion to amend the restraining order to permit concerts to take place on the property.

Judge Ford denied the motion on April 14, saying "what you're asking me to do is to bypass the Land Use boards in Lakewood and to grant your request to conduct the business. And your basis is simply for 1) it's a profitable business, and 2) because we've done it [illegally] all along."

On August 12, 2022, Clayton Associates filed a Motion for Summary Judgement on this lawsuit to close things out with a final order that concerts can not be held at Lake Terrace until if, and when they receive all non-appealable approvals and permits.

On August 30th, Lake Terrace's Attorney Matthew Fiorovanti filed Opposition to Plaintiffs Motion for Summary Judgement, and a Cross-Motion to Stay the Litigation pending the outcome of their Zoning Board application.

In his motion filing, Mr. Fiorovanti indicated that Lake Terrace has submitted an application for use variance and site plan approval to the Board to allow the Property to continue to be used for banquets, weddings, concerts, and all other manner of events and gatherings - "not as an admission that it is not permitted to use the Property to host banquets, weddings, concerts or other events, but rather to bring an end to the lengthy and costly litigations instituted by Plaintiff."

Mr. Fiorovanti asserted that if the Board approves the application, the Board will conclusively decide that the Property can continue to be used to host concert events. At that time, this litigation will be rendered moot, as the Board will have resolved the sole issue presently before the court: whether the Property can continue to be used to host concert events, and therefore, instead of the court reaching this question of whether or not the Property can continue to be used to host concert events, "in accordance with applicable principles of judicial economy, the court should stay this litigation pending the outcome of KBS’s application."

Lakewood Township - at taxpayer expense - joined in the efforts on behalf of Lake Terrace!

Attorney Danielle A. Rosiejka, submitted a 13 page Opposition to Plaintiffs Motion for Summary Judgement, all to beg Judge Ford not to order the Township to enforce its own zoning laws!

Ms. Rosiejka admits that "it is undisputed that the subject property is located in a zone in which a “concert hall” is not a permitted use", however, she argues that Mandamus (which would direct the Township to enforce its zoning ordinances) should not be granted here because.... 1) while there is no dispute that this use is not permitted, the Plaintiff has failed to state how the zoning violation "has especially affected the plaintiff",... 3) there is "another adequate form of relief" as "the Defendant has applied for a use variance before the Zoning Board and the Plaintiff’s concerns about the property will be addressed in that forum."

Attorney Shea filed a Reply Brief, clarifying that the two arguments which are, 1) the permissibility of the concert use is pending before the Zoning Board and all judicial action should be held until the Zoning Board hears the case and rules on the matter, and 2) the Plaintiff does not need to run to court as they will have an appropriate remedy at the Zoning Board, is all nonsense, as despite whatever use variance relief the Zoning Board may grant in the future, it does not change the fact that this use is currently not permitted, and while the Zoning Board can determine whether or not to grant a Use Variance, they can not determine whether or not Lake Terrace can continue concerts until they obtain a Use Variance. Therefore, the matter is up to the Township to enforce their zoning laws, and if he Township simply refuses to enforce its own ordinances, the Plaintiff does have no other remedy than to seek the Court's order.

Ultimately, Judge Ford denied the Motion for Summary Judgement, explaining that "there are substantial issues of fact which preclude the grant of summary judgment."

Judge Ford also granted the Cross-Motion for a Stay "pending a decision by the Lakewood Zoning Board."

The granting of the Stay means there would be no full-blown trial nor a "final determination" regarding the concert hall use.

As previously reported here on FAA News, Mr. Shea recently filed a Motion for Reconsideration on the Stay.

He argues, "while the issue of whether or not the property will receive a use variance to host concerts in the future is before the Board, the question of whether or not the operation of concerts to date qualifies as a violation of Lakewood's ordinances and the property's only Resolution of Approval, remains before the Court. The Plaintiff is requesting this Court to make a determination as to whether or not the Defendant's had the right (past and present) to operate this site as a concert hall."

Mr. Shea's proposed order states that:

• The Court finds that Defendants KBS Mt. Prospect, LLC and Lake Terrace Manager, LLC have operated a concert hall/concert in violation of their only existing Resolution from the Lakewood Zoning Board of Adjustment, and the Lakewood Unified Development Ordinances.
• The property shall be barred from operating as a concert hall/concert venue until KBS receives a final, unappealable use variance for a concert
hall/concert venue from the Lakewood Township Zoning Board of Adjustment, complies with any and all conditions of same, and obtains any and all additional approvals which may be required, including but not limited to, a Zoning Permit, a Certificate of Occupancy, and any required outside agency approvals.
• The Township of Lakewood shall enforce this Order until such time as the property obtains the above listed approvals.

Mr. Shea asserts that the Motion for Reconsideration should be granted because a) the Plaintiff has the right to relief against Lake Terrace and the Township, and b) the Court erred in its granting of a Stay as it was based on a "palpably incorrect or irrational basis."

Lake Terrace's attorney Matthew Fiorovanti Esq has now filed Opposition to the Motion.

He argues that a motion for reconsideration is not meant to re-argue the exact same facts and law which were already argued, and can not be granted unless the Plaintiff explains how the Court erred in the first place.

"In denying Plaintiff’s motion for summary judgment, the Court correctly found that there
remains a factual dispute as to whether the Property be used to host concert events.
Plaintiff cannot demonstrate that the use of the Property as a banquet facility and an assembly hall that host concerts is not a permitted use in the Industrial (M-1) and Airport Hazard Zones in which the Property is located. Indeed, the permitted uses in the Industrial (M-1) Zone include “hotels,” which is defined to specifically include “banquet”, “cocktail lounges” and “convention” facilities, “facilities for on-site provision of health and human services, including spas, gyms, health clubs and like facilities,” and “restaurants,” and the permitted uses in the Airport Hazard District broadly include “commercial” uses. As such, it is hardly an open-and-shut question that the Property cannot be used as an “assembly hall” to host concerts, and Plaintiff cannot rely on the absence of a use variance or other approval in the record history, as no such variance may have been required," Mr. Fiorovanti asserts.

This is quite an interesting argument as just last week, Judge Ford rejected Mr. Fiorovanti's similar arguments that dormitories may be a permitted accessory use to a school simply because "Plaintiff cannot demonstrate that the use of the Property as a dormitory is not a permitted use." Mr. Fiorovanti is now using the exact same argument that "Plaintiff cannot demonstrate that the use of the Property as a banquet facility and an assembly hall that host concerts is not a permitted use in the Industrial (M-1) and Airport Hazard Zones in which the Property is located."

Due to this assertion that "Plaintiff can't make this argument," Mr. Fiorovanti asserts that "there are material facts which are in dispute" and therefore, the Court was correct in denying Summary Judgement.

"In the event the Court indulges Plaintiff’s repetitive application, the Court should not alter
its well-reasoned decision, as numerous questions of fact exist to preclude the entry of summary
judgment permanently barring the use of the Property to host live concert events and the interests of justice warrant a stay of this litigation pending the outcome of KBS’s use variance application," he concludes.

And once again, Lakewood Township's attorney is using taxpayer dollars to defend Lake Terrace.

Attorney Danielle A. Rosiejka Esq filed Opposition to the Motion, asserting that "Plaintiff is not entitled to summary judgment as they have failed to establish the required prerequisites for Mandamus relief. First, Plaintiff has failed to demonstrate a “clear violation” of the zoning ordinance or that the violation of same has specifically affected them. Here, whether the use of Defendants’ property as a concert venue has specifically affected the Plaintiff is a disputed material fact that precludes summary judgment. Without any findings that the Plaintiff has suffered any damages or that the Defendants’ use of the Property has impacted the use and enjoyment of the Plaintiff’s property,
the Plaintiff cannot establish the first prerequisite for Mandamus relief. Second, the Plaintiff has not
demonstrated concrete evidence establishing a pattern of indifference by the Township regarding the enforcement of local zoning ordinances as it relates to the Defendants use of the Property as a concert hall."

Clayton Associates has not yet submitted a Reply Brief.

Judge Ford is scheduled to hold oral arguments on the Motion on Wednesday, January 20, 2023.

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