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Fresh in his newly appointed position, Ocean County Assignment Judge Francis Hodgson late Friday afternoon summoned the Lakewood Township Committee and Planning Board to the principal's office to "show cause" why a Stay should not be entered against the 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.

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 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."

Essentially, the Township attorneys are arguing that because Bnos Brocha withdrew their previously filed Planning Board application, there is currently no pending application that would cause immediate harm to the Plaintiff if the Ordinance is not immediately restrained. They are also claiming that the Ordinance does not legalize existing banquet halls.

Curiously, Attorney Miriam Weinstein Esq. representing Bnos Brocha withdrew the Planning Board application simply because she interpreted the new ordinance to not require schools with existing banquet halls to present an application to the Planning Board so long as they met the parking requirements - not because they no longer wanted to legalize their banquet hall...

Additionally, according to Planning Board Attorney John Jackson's email to the Township Committee, the Board did recommend grandfathering in existing banquet halls.

Additionally, as asserted in the lawsuit, "This provision is at odds with Mayor Coles' on the record representation to the public at the First Reading that the ordinance "is for future applications. This provision is at odds with Mayor Coles' on the record representation to the public at the Second Reading that an existing school's ability to operate an existing banquet hall "would depend on whether or not they've been to the Planning Board already to get that approval as an accessory use."

Therefore, despite that there may not be any banquet hall applications currently pending before the Planning Board, if the Ordinance does indeed legalize existing banquet halls, then there may indeed be "immediate harm" to the Plaintiff if the Stay on the Ordinance is not granted.

Additionally, this major difference of interpretation among attorneys is precisely the basis for the lawsuit which asserts that the parameters of the ordinance is "vague"🤔.

Planning Board Attorney John Jackson Esq. also filed a letter of Opposition to the lawsuit.

Late Friday afternoon, Judge Hodgson signed an Order formally summoning the Township Committee and Planning Board's attorneys to a hearing on Monday afternoon to determine whether or not to grant the Restraining Order that the lawsuit seeks.

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1 comment:

Anonymous said...

Up until Bnos Brocha's simcha hall got shut down in court, we had zero need for this ordinance as the Planning Board simply turned a blind eye to the many simcha halls which were quietly (but openly) passed right through, despite them not being permitted by the ordinance.

Once Bnos Brocha got shut down due to a lawsuit which correctly alleged that they were operating a simcha hall with no Township approval, the Township Committee quickly swung into action to introduce this ordinance formally permitting simcha halls.

Thanks to this lawsuit and the pending Stay on the ordinance, the Township will easily spend tens of thousands of dollars of taxpayer funds just to defend a lawsuit which only benefits Bnos Brocha.