At a tense hearing today, Ocean County Assignment Judge Francis Hodgson formally denied ordering a Stay on Lakewood Township's recently adopted ordinance which permits banquet halls as accessory uses in school buildings in all non-residential zones where schools are permitted and the Oak Street Core Neighborhood Overlay Zone-1.
Judge Hodgson did however schedule an additional hearing next month when the Plaintiff will be able to further argue the matter.
As previously reported here on FAA News, following the Township Committee's adoption of the "banquet halls permitted in schools" Ordinance, an Industrial Park property owner, represented by Attorney Rob Shea Esq. filed a lawsuit seeking to stay and overturn the new ordinance.
The complaint contains 15 counts including allegations that the Committee members had conflicts of interests with personal or family connections to schools which would benefit from adoption of the Ordinance, and that the Planning Board failed to make a determination as to whether or not the proposed ordinance was consistent with the Master Plan, as they are Statutorily required to do.
The complaint also alleges that the Township Committee failed to provide personal notice to affected property owners before adopting the new ordinance, and that the Committee adopting the Ordinance by virtual meeting was illegal.
In addition to the regular lawsuit, which will take many months to get to trial, the Plaintiff's have filed an Order to Show Cause seeking an immediate Restraining Order to Stay enforcement of the Ordinance.
According to well established case law of Crowe vs. DeGoia, in order to be granted Temporary Restraints, the moving party needs to show that they 1) will suffer immediate irreparable injury absent the granting of relief, 2) have a reasonable probability of success of the merits of their claim, and 3) on balance, will suffer greater hardship if relief is denied than the opposing party if relief is granted.
Noting that the Amended Ordinance contains absolutely no new buffers or setback requirements, the Plaintiff, whose property abuts proposed banquet halls, assert that they will "suffer immediate irreparable injury absent the granting of relief" of staying the ordinance.
Highlighting the numerous procedural violations of the New Jersey Open Public Meetings Act and the New Jersey Municipal Land Use Law which their lawsuit cites, they claim they "have a reasonable probability of success of the merits of their claim," sufficient to be granted a Stay on the ordinance.
Finally, as the Amended Ordinance, which is full of ambiguity which will create havoc at the Planning and Zoning Boards, would grant hardship only to the Plaintiff as banquet halls would be approved next door overnight, whereas the Township Defendant would not suffer any hardship at all from the granting of a Stay, the requested relief satisfies the requirement that the Plaintiff, "on balance, will suffer greater hardship if relief is denied than the opposing party if relief is granted."
Luckily, the Township has sufficient taxpayer funds to heroically defend ordinances such as this one!
Toms River Attorneys Jean Cipriani and Robin La Bue of the Toms River-based firm of Rothstein, Mandell, Strohm, Halm & Cipriani, representing the Township Committee, filed Opposition to the requested Stay of the Ordinance.
They wrote to the Court:
"Many of the factual statements made by the Plaintiff in support of its application are
blatantly false....
The Ordinance was introduced and was referred to the Planning Board for their review and recommendations on October 21, 2022 in accordance with Municipal Land Use Law. The
Planning Board considered the Ordinance at their meetings held on November 15, 2022 and
November 29, 2022. The Planning Board report was
forwarded by its Counsel to the Township Attorney on December 1, 2022.
Plaintiffs have failed to demonstrate the requisite irreparable harm that would occur if the
requested relief is not granted as against the Township.
Plaintiffs’ Amended Order to Show Cause did not allege any specific irreparable harm concerning the provisions of Ordinance 2022-46, rather Plaintiff detailed harms concerning already existing banquet facilities located on properties neighboring its business in the M-1 Zone that are the subject of separate litigation.
Moreover, any potential harms alleged concerning implementation of the ordinance on any
new properties are entirely speculative in nature. The Amended Ordinance merely permits a
specific accessory use in particular zones throughout the Township, it does not confer a right upon
a specific property, nor does it automatically approve that use on any lot.
Any application for an accessory use as provided for under the Amended Ordinance would
require the submission and approval of a Development Application.
Plaintiff, and any other aggrieved property owner would receive notice of an application
impacting their property for an accessory use scheduled before the Planning Board, and would
have the opportunity to appear and object expressing all of the potential harms alleged in their brief. As the Amended Ordinance only permits banquet halls as an accessory use to a school and
there are currently no applications pending for such a use, plaintiff has failed to demonstrate any
specific irreparable harm that plaintiff would suffer if the injunctive relief is not granted.
Without the threat of irreparable harm, plaintiff is not entitled to injunctive relief. Plaintiff’s
allegations concerning the defects in the Land Use Ordinance may be litigated in the ordinary
course. Any developers submitting applications under the Ordinance for the accessory use would
do so on notice to neighboring property owners and at their own risk."
Planning Board Attorney John Jackson Esq. also filed a letter of Opposition to the lawsuit.
Late Friday afternoon, Judge Hodgson signed an Order formally scheduled today's hearing to determine whether or not to grant the immediate Restraining Order that the lawsuit seeks.
At today's hearing, Mr. Shea highlighted that in Ms. Cipriani's brief, the wording of the Ordinance "conveniently" left out the very pertinent wording of "shall continue to be allowed" which appears to indicate that the ordinance will legalize existing banquet halls.
Ms. Cipriani, representing the Township, opposed imposement of the Stay, citing case law from Brown v. City of Newark which found that "municipal ordinances are presumptively valid."
Ms. Cipriani argued that "Plaintiff’s complaint is not that the Planning Board did not comply with the Municipal Land Use Law, but that the Plaintiff is dissatisfied with the conclusion it came to in its consideration under the referral."
Ultimately, stating that the damages alleged were "abstract in nature" as any developers submitting applications under the Ordinance for the accessory use while the lawsuit continues would do so on notice to neighboring property owners and at their own risk, Judge Hodgson ruled that the Plaintiff did not sufficiently make his case under Crowe vs. DeGoia, which requires moving parties for the granting of Temporary Restraints, to show that they 1) will suffer immediate irreparable injury absent the granting of relief, 2) have a reasonable probability of success of the merits of their claim, and 3) on balance, will suffer greater hardship if relief is denied than the opposing party if relief is granted.
Judge Hodgson denied the request for Temporary Restraints, however he did schedule an additional hearing on the matter which will be held on March 3, 2023.
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