Following Sudler's motion to collect legal fees from Lake Terrace over their frivolous retaliation lawsuit, Lake Terrace shot back with a move of their own, arguing that because Sudler's attorney has gotten every scheduled Zoning Board hearing over their application cancelled due to legalities with the notices, their court-imposed orders and payment of legal fees should be withdrawn or stayed pending outcome of the Zoning Board hearing.
In response, Sudler shot back with a move of their own - a Cross-Motion to Enforce Litigants Rights, seeking to completely shut down Lake Terrace for numerous violations of the court orders.
Their complaint includes surveillance footage of LCSW directing banquet hall patrons to park at Bnos Brocha, which is a violation of the court orders that restrict all parking to on-site only.
As previously reported here on FAA, there has been an ongoing nearly two-and-half years long legal land use saga regarding the famous Lake Terrace wedding and concert hall in Lakewood which began after Clayton Associates, an industrial neighbor, filed a lawsuit seeking to shut down Lake Terrace after discovering that they never received Township Zoning Board approval for a banquet hall.
Clayton Associates and their property owner Sudler are represented by Toms River Attorney Rob Shea. Lake Terrace is represented by Red Bank Attorney Matthew N. Fiorovanti. Greenwald Caterers is represented by Toms River Attorney Jerry Dasti. Lakewood Township, who is being sued in order to enforce its zoning ordinances, is represented by Toms River Attorney Danielle Rosiejka.
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 including limiting the occupancy to 712 seated guests, barring any outdoor activities or events on the banquet hall property, and requiring all parking to be maintained on-site only.
Judge Ford signed this Order as a interim compromise to permit Lake Terrace to continue operating while the lawsuit continues, but with restraints.
On March 16, 2022, Lake Terrace filed a motion to modify the February 3, 2021 order to permit them to host outdoor events. Lake Terrace's attorney explained that, as the summer was coming up, the banquet hall wanted the option to host outdoor chuppah's.
In response, on April 6, 2022, Clayton filed a Cross Motion to Enforce Litigants Rights, seeking to uphold the February 3, 2021 order. Clayton advised the judge that, on March 2 (which was Lag Baomer), in violation of the February 3, 2021 order, Lake Terrace held an outdoor Lag Baomer event. Clayton complained that there was a lot of overflow parking onto the local streets and neighboring parking lots, all in violation of the February 3, 2021 order. Clayton sought to have the judge declare Lake Terrace to be in contempt of court, shut them down, and order them to pay legal fees and fines.
At the motion hearing, Lake Terrace's attorney explained very innocently that Lake Terrace had "no knowledge" of the Lag Baomer event held in their parking lot and that they had never rented out their parking lot to anyone for that event.
Judge Ford declined to grant the Cross Motion to Enforce Litigants Rights, and she also declined to completely shut down Lake Terrace, however, she also declined Lake Terrace's motion to modify the February 3, 2021 to permit them to host outdoor chuppah's.
Ford did, however, state clearly that, "if there is no compliance from these parties and there is a continuation of just bending this order of the court, then I will entertain a motion to shut them down and to order monetary sanctions."
In June 2022, attorneys for Clayton again cranked things up a notch with a Motion to Enforce Litigant's Rights, claiming that Lake Terrace has continued to violate the court orders by hosting events with so many people and cars that parking overflowed off-site. They also alleged that the condition of "no outdoor events" was violated after an outdoor chuppah was held in the street while police shut down the road.
At the hearing held on July 8, 2022, attorneys for Lake Terrace and Greenwald Caterers vehemently downplayed "the issues" and beseeched the judge not to take a draconic move of shutting down their business because of "something that someone else did" saying that move would bankrupt them.
They also noted that Lake Terrace had just recently filed a new application to the Zoning Board to finally seek Use Variance relief for weddings and concerts.
Judge Ford ultimately denied the motion to completely shut down Lake Terrace, but found them in violation of the court order, ordered them to pay a $5,000 sanction as well as legal fees incurred by Clayton as a result of filing their motion.
Judge Ford also warned that her permitting Lake Terrace to continue to operate with certain conditions was a "compromise" and that the owners of Lake Terrace have reciprocated by acting in "the ultimate lack of good faith" and therefore she is "one second away from revoking their Certificate of Occupancy" (which would shut them down completely).
Judge Ford also ordered that no further outdoor events or gatherings of any sort at all take place outdoors within 1,000 feet of Lake Terrace.
On July 20, 2022, just mere couple of weeks after the July 8th hearing, - and prior to the August 10th signing of the latest Order, Clayton Associates filed yet another Motion to Enforce Litigants Rights seeking to completely shut down Lake Terrace.
In this filing, attorneys for Clayton provided photos and videos from their surveillance camera footage showing that, just 2 days and 4 days after the July 8th hearing, Lake Terrace hosted events with parking overflowing onto both sides of Corporate Road West, "creating a dangerous situation in that a truck driving down the road was forced to drive extremely slowly and carefully to ensure it did not side swipe any vehicles." Clayton also claimed that banquet hall patrons illegally parked in their property parking lots as well as at Bnos Brocho which is also a violation of the court order.
Clayton further claimed that one Lake Terrace patron who parked in Clayton's parking lot urinated in their parking lot when he returned to his car. They claimed that also they don't actually see that in their security camera footage, they can "audibly hear it just out of the camera's view."
Attorney Shea emphasized in his motion filing that "simply ordering monetary sanctions against Lake Terrace is insufficient as they just received a monetary sanction at the last hearing and yet, 'here we are here again'."
Mr. Shea further demanded that the Court find Lake Terrace in violation of the court order, and order monetary sanctions and legal fees.
On August 1st, prior to the judge's August 10th signing of the order which clarified that indeed on-street parking - despite not being prohibited by the Township - was prohibited for Lake Terrace patrons, Attorney Fiorovanti responded with a letter in opposition to the motion, claiming that it was unfairly filed while the parties were waiting for written clarification from the judge as to whether or not on-street parking was indeed prohibited for Lake Terrace patrons, and therefore the parking violations were not actually violations of the court order.
Mr. Fiorovanti also responded to the trespass/parking and urinating allegations saying "there is nothing that Defendants could have done to prevent these actions by an unknown person. Even assuming such conduct constitutes a violation of the February 3, 2021 Order—which it does not—such conduct cannot be attributed to Defendants and cannot justify granting Plaintiffs’ motion to enforce litigant’s rights. It is simply out of Defendants’ hands if some unknown individual decides to ignore no-parking signs, trespass onto Plaintiffs’ property and then urinate."
At the motion hearing, on-street parking was the hot topic of the day.
"We can not enforce no on-street parking or tow cars. We can only post a sign on our parking lot directing patrons to only park in our lot", Mr. Fiorovanti argued.
Attorney Jerry Dasti also argued that there was no violation of the previous court orders, "we are in complete compliance with your orders. We should be allowed to park on the streets just as anyone not attending an event at Lake Terrace can park on the same streets. Deny the motion and stop Clayton's harassment."
Judge Ford asked that "if there are no more than 700 people at the events and there are 379 parking spaces, and it's 2 people per car, why is the parking lot not sufficient?"
Mr. Fiorovanti innocently responded "I do not know."
Judge Ford retorted, "if the real plans for this use were ever presented before the proper land use board, the Board probably would have required additional parking."
Judge Ford then addressed the attorneys' arguments that only the Township could enact on-street parking restrictions and that she lacked such authority, with the following retort: "if that is correct then what authority do I have at all?"
Judge Ford then issued her decision:
"It seems to me that the simple response now would be to completely shut them down. However, I do note that while they never got any land use board approval for a banquet hall, this use has somehow been in existence for over a decade.
"At the injunction hearing back at the end of 2021, rather than shut them down completely, I allowed them remain open but with imposition of certain restrictions. I will now continue to permit them to operate pending the outcome of the lawsuit, but I will expand and clarify the restrictions.
"I am not trying to put anyone out of business or enact any special parking ordinances as indeed I do not have authority to enact parking laws. Rather I am simply attaching restrictions on the operation on this banquet hall. I do have authority to shut the place down, but, instead of shutting them down I will permit them to remain open but with this condition restricting on-street parking."
Judge Ford then reiterated "parking on-street is prohibited. Parking can only be in their parking lot. If there is not enough parking in their own lot, maybe they should bus in the guests."
Judge Ford then noted that because the original school that was approved by the Zoning Board in 2005 was a not-for-profit, but this Lake Terrace banquet hall is a commercial entity. She therefore, ordered that in conjunction with the on-street parking conditions, they must hire "uniformed security guards, who are current or former law enforcement officers, employed by a professional businesses that provide traffic control or is otherwise experienced in traffic control" - adding that they must be knowledgeable in local parking ordinances and not "just someone who slaps on a vest." Ford specified that they need to hire 2 officers per 100 guests for a total of 14 officers if they have their maximum of 700 guests.
In November 2022, just as discovery on the case was wrapping and a trial date was get ready to be scheduled, Lake Terrace filed a Motion to Stay the litigation, arguing that their Zoning Board appeal hearing was coming up and everything that they would argue at a trial they would anyways need to present to the Zoning Board so they requested a Stay of the court proceeding so as not to need to present all the same testimony in two venues.
Sudler vehemently opposed the motion. On December 2, 2022, Judge Ford granted the Stay pending the outcome of the Zoning Board appeal.
On January 30, 2023, just before her retirement, Judge Ford signed an Order regarding the legal fees which Sudler was awarded at the July motion hearing. This order was for Lake Terrace to reimburse Sudler $12,000 for their legal fees on that motion filing.
Just this week, Lake Terrace filed a Motion to either completely lift all of their court orders and order to pay legal fees, or at least to waive enforcement of these orders pending the outcome of their Zoning Board appeal - simply because Sudler keeps on getting their Zoning Board application hearings cancelled, which is ultimately delaying them from being able to receive their required Use Variance.
The Board first scheduled a Special Meeting to hear their application back in October 2022.
However, that hearing was cancelled after Attorney Shea Esq., submitted a letter arguing that the floor plans and valet parking plans were first made available to the public less than the statutorily required 10 days prior to the hearing, which was designed to give the public adequate time to review the application prior to the Board hearing on it, and therefore the Board lacked jurisdiction to hear the case as originally scheduled.
The Board then scheduled a Special Meeting to hear the application back in November 2022.
That meeting was also cancelled because, prior to the meeting, Attorney Shea wrote to the Board that they failed to provide "adequate notice" of the special meeting (as required under the New Jersey Municipal Land Use Law) by only publishing notice in one newspaper and not two.
The Board then scheduled a Special Meeting to hear the application on February 1, 2023.
That meeting was also cancelled because, prior to the meeting, Attorney Shea wrote to the Board that their Special Meeting notice failed to adequately state all the uses that Lake Terrace's application seeks approval for, as well as to state whether "formal action may be taken at the meeting."
Mr. Shea also wrote to the Board that their 2022 and 2023 "annual meeting notices" failed to meet the "adequate notice" requirement as they were required to be published in two newspapers and they were only published in one newspaper, and consequence the Board did not have vested authority to hold meetings in 2023 and therefore any meeting held on February 1 would null and void.
Seeing that Mr. Shea has gotten the Board to cancel 3 scheduled hearings due to legalities with the meeting notices, Lake Terrace has now switched tracks and has filed a Motion to either completely lift all of their court orders and order to pay legal fees, or at least to waive enforcement of these orders pending the outcome of their Zoning Board appeal.
Mr. Fiorovanti wrote in his Motion filing:
"These Court-ordered restrictions granted rights to Plaintiff that simply do not exist under code or law. Worse, the entry of these restrictions unduly punish Defendants despite the fact that they have violated no laws, and despite causing no actual damages to Plaintiff, the Township or any third-parties. The reach of the orders also goes far beyond the property rights of the litigants before this court, and purports to constrain the rights of attendees, of other property owners on other streets, and the rights of pedestrians to park in otherwise legal and municipally approved places. These orders also cause Lake Terrace to sustain undue, ongoing costs and damage to its business and reputation. In entering the orders that are subject of this motion, this Court has not only, in effect, legislated and prescribed new municipal code that did not and does not exist in an improper usurpation of the Township's vested authority, but also impinged upon the constitutional property rights of Defendants and third-parties not in this case.
"While the court may have been well-intentioned and attempted to 'play Solomon' to appease all parties, the court lacked the authority to restrict the continued operation of the Lake Terrace facility. The court found, on numerous occasions, that there was no basis to completely shut down the Lake Terrace facility, given the existence of fact questions regarding the scope and applicability of the prior approvals and the absence of irreparable harm to Plaintiffs. The court did not have the authority to fashion its own arbitrary "middle ground" which would allow the facility to remain open but subject to onerous, costly conditions. Such authority is vested only with the Township.
"The orders here are ripe for Reconsideration as the operative facts have changed, the terms of the orders are vague and of indefinite nature, and there never existed a proper factual or legal foundation for them in the first place.
"This motion for Reconsideration has become necessary because Plaintiffs have have it clear that they will continue to seek to delay and interfere with KBS's pending [Zoning Board] application. While Defendants intended to bring this matter to a quick resolution, it is clear that that will not happen as a result of Plaintiff's interference. Because Plaintiffs have frustrated KBS's ability to secure a prompt resolution from the Zoning Board, and because the court lacked the authority to impose the arbitrary conditions upon the continued operation of the Lake Terrace facility, Defendants hereby move for Reconsideration of the orders to the extent they impose arbitrary conditions of operation."
In response, Sudler, represented by Mr. Shea, just shot back with a move of their own - a Cross-Motion to Enforce Litigants Rights, seeking to completely shut down Lake Terrace for numerous violations of the court orders.
They allege that at a number of recent weddings held at Lake Terrace, numerous patrons were parked along the adjacent roadways and in adjacent parking lots including the Plaintiff's parking lots - all in violation of the court orders.
They further allege that not only did the LCSW members - who are tasked with enforcing the parking restrictions - not stop patrons from parking as they please, they even directed patrons to park in other parking lots including Bnos Brocha's lot. They provided numerous surveillance footage to substantiate their claims.
"The Defendant's deliberate non-compliance with the February 3, 2021 Order renders their actions unjustifiable and inexcusable. Due to their Defendant's repeated violations, as well as their ability and refusal to comply with same, the Court should find that Defendants are in willful and unjustifiable violation of said Orders, and the Court should once again impose sanctions against the Defendant's and issue an Order for attorneys fees."
Mr. Shea also asserts that Lake Terrace's motion to waive the court orders should be denied as they failed to identify a single matter which warrants Reconsideration as every single one of their claims have already been considered and rejected by Juge Ford.
Alternatively, Mr. Shea suggests, should the Court does choose to waive the previous orders, then the stay on the litigation should also be lifted and the matter should proceed to trial.
Mr. Shea's proposed Order states:
KBS Mt. Prospect, LLC, Lake Terrace Manager, LLC and Greenwald Caterers, Inc. are hereby found in violation of the Court Orders dated February 3, 2021, August 10, 2022, and August 26, 2022. The Court further finds that Defendants’ actions constitute bad faith as well as a willful violation of said Orders;
ORDERED, that Defendants are to immediately cease all activity on the property located at 1690 Oak Street until such time as they have received all requisite, non-appealable, approvals and complied with all conditions thereof;
ORDERED, any and all Certificates of Occupancy are hereby revoked;
ORDERED that Defendants shall pay sanctions in the amount of $_________ for their repeated violations of the February 3, 2021, August 10, 2022, and August 26, 2022 Court Orders;
ORDERED, that Defendants shall pay Plaintiff’s attorney fees and legal expenses related to the filing of this motion. Plaintiffs’ counsel shall submit an Affidavit of Services within 15 days of this Order. The same shall be paid within 30 days from the date in which the affidavit of services are approved by this Court.
ORDERED, that all relief sought by KBS and Lake Terrace in their Motion for Reconsideration is hereby DENIED.
Lake Terrace has not yet replied to this just filed Motion.
Judge Hodgson has scheduled oral arguments on Lake Terrace's motion and Sudler's Cross-Motion for next Friday, March 3, 2023.
To join a FAA WhatsApp Group, click here.
To join the FAA WhatsApp Status, click here.
No comments:
Post a Comment