Attorney Rob Shea, representing industrial park property owners, filed a lawsuit seeking to overturn the Township's new ordinance which legalizes banquet halls in schools. The lawsuit includes an Order to Show Cause which asks Ocean County Superior Court Judge Francis Hodgson to order a stay on the lawsuit pending the outcome of the lawsuit.
Lakewood Township Planning Board Attorney John Jackson has Opposition to the Order to Show Cause, arguing "the ordinance does not really change anything."
Mr. Shea has now pushed right back, saying:
"The ordinance certainly does change things very much, because it legalizes existing banquet halls... There is the very real and present possibility that a banquet hall could commence operation without any notice or warning to any commercial or residential property owner within Lakewood's non-residential zones... Therein lies the danger of the Ordinance's retroactivity provision and this is why the ordinance must be stayed."
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 also filed an Order to Show Cause which seeks a hearing to determine whether to Stay enforcement of the Ordinance. The Plaintiff's also filed for Temporary Restraints, which seeks an even more immediate Restraining Order on 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 immediate 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.... Ordinance 2022-046 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."
As previously reported here on FAA News, on February 6, Judge Hodgson denied any temporary restraints pending return of the Order to Show Cause, and set a hearing on the Order to Show Cause for Friday, March 3.
At the 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 asserted 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.
Ahead of next week's hearing, Planning Board Attorney John Jackson has filed Opposition to the Order to Show Cause.
Mr. Jackson wrote:
"Plaintiff has failed to demonstrate the requisite irreparable harm that would occur if the requested relief is not granted as against defendants. As to the first prong of the Crowe test, the plaintiff must show immediate, irreparable harm if relief isn’t granted. Plaintiff fails to satisfy this prong because any banquet hall approved by the town would require site plan approval, would have to apply for building permits, be built, and obtain a certificate of occupancy even if it were granted site plan approval. Any one of these prerequisites would provide an aggrieved party with an avenue to prevent the banquet hall from opening. There simply can be no credible claim that the enactment of this ordinance creates an immediate irreparable harm.
"As to the second and third prongs of the Crowe test, the plaintiff
must show a settled underlying claim and reasonable probability of success on the merits. The
plaintiff’s complaint with the Planning Board was that the report of the Planning Board was
issued to the mayor and council via e-mail from the Board’s counsel. The statute does not
instruct how the report on the vote of the planning board is to be prepared or conveyed. There are
no cases that address this topic. The plaintiff’s claim that the way the results of the Planning Board’s decision were reported to the mayor and council was somehow deficient cannot be said
to be based upon any law, let alone a settled underlying claim.
"As to the fourth prong of the Crowe test, the Planning Board submits that a balancing of
the relative hardships of the parties reveals that there is zero hardship to the plaintiff if no injunction is granted, since the ordinance provides no immediate rights for anybody. The only
right created is for someone to apply for site plan approval, which may or may not ever happen
under the new ordinance. In comparison, the governing body of Lakewood and the Planning
Board must be permitted to promulgate laws that promote a policy objective in accordance with
its duty to be responsive to the citizens at large. The governing body, through its adoption of this
ordinance, and the Planning Board, by virtue of its determination that the ordinance was
consistent with the Master Plan, has determined that banquet facilities are important to the
citizens of Lakewood. We respectfully submit that if one conducts a balancing test, the ability of
Lakewood to govern far outweighs any speculative hardship that may or may not occur to the
plaintiff.
"For all of these reasons, the Planning Board requests that the requested stay on the Ordinance be denied."
Mr. Shea has now filed a Reply Brief in response to this Opposition countering Mr. Jackson's assertion that the ordinance does not grant any right other than for a school to seek Site Plan approval for a banquet hall - by pointing out that the Ordinance grandfathers in existing banquet halls, without any requirement of a public hearing and notice to the public.
"The Planning Board claims that the Ordinance simply allows those wishing to construct a banquet hall to appear before the Board to seek their approvals. This argument discounts those entities which already own a school with a multipurpose room. Such an establishment is permitted to be used as an accessory banquet hall if it complies with parking requirements of the Ordinance. As such, a compliant school would only need to file for a zoning permit from the zoning officer to commence operation of said banquet hall, without the need for any application or public hearing at a Planning Board meeting....
"Far more than simply allowing for applications for the construction of new banquet halls, the ordinance provides retroactive approval for any existing school that has a multipurpose room of sufficient size to become an accessory banquet hall as of right. If the school has sufficient parking they would very simply make an application to the zoning officer to seek a zoning permit without the necessity of a public hearing or the Planning Board ever taking jurisdiction over said application. This process would not alert any member of the public that such a significant change in use had occurred. It further would allow any existing school that meets the ambiguous parking criteria, to immediately begin renting out their gymnasiums...
"The Ordinance permits a banquet hall, which is a far more intense use than a school, as an accessory use to same with no requisites other than a nebulous parking requirement...
"As such, there is the very real and present possibility that a banquet hall could commence operation without any notice or warning to any commercial or residential property owner within Lakewood's non-residential zones... Therein lies the danger of the Ordinance's retroactivity provision," Mr. Shea argues.
"If the enforcement and effects of the Ordinance are not stayed pending the outcome of this litigation, then there will be a significant estoppel argument to be made by any school who has booked banquet events even once the Ordinance has been adjudicated to be invalid."
Mr. Shea also noted that Planning Board Acting Chairman Eli Rennert expressly commented regarding the then-proposed ordinance "obviously, I don't think it's consistent to just say across the board that banquet halls are permitted."
Mr. Shea further argues that the ordinance should be invalidated as the wording was substantially changed between first and second reading, and because the Township failed to provide personal notice as required for a change of classification of a zoning district.
Judge Hodgson has scheduled oral arguments on the requested stay of the ordinance for this Friday, March 3.
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