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Developer Joseph Bitton is fighting vehemently in Superior Court against the Lakewood Planning Board's denial of his application on East 8th Street after the developer refused to install a full-sized cul-de-sac bulb on the long and narrow road, which, in this particular case, is not required by local or state laws.

The case is gearing up to be a very pivotal case which will decide how much latitude the Lakewood Planning Board has in denying - over traffic safety concerns - applications which the Township Committee has deemed to be "by-right."

Back in 2014, the Lakewood Township Planning Board approved a row of houses along East 8th Street. At the urging of the then-Board of Fire Commissioners, the Planning Board stipulated that the developers build a turn-around at the end of block. During Resolution Compliance, the Board Engineer mysteriously turned a blind eye to this stipulation, and permitted the homes to get built despite there being no provision for the required turn-around, hence there is still no turn-around on this road.

In June 2021, Joseph Bitton presented to the Planning Board a new application to build 6 duplex houses on the other side of East 8th Street on the site of the former Greenwald Caterers commercial kitchen.

The application did not include provisions for any turn-around at the East 8th Street terminus which has frontage along this property.

The tract of land contains about 30,000 sq feet of land and it is located in the R-M, Multi-Family Residential Zone District which permits Duplex Housing on lots of 10,000 sq feet. The application seeked variances of Minimum Lot Area as well as Minimum Rear Yard Setback for some of the lots.

In the engineer's review letter provided prior to the Public Hearing, Board Engineer Terry Vogt noted to the Board that there is no turnaround at the terminus of Eighth Street and that "there appears to be room to install a turnaround in the existing pavement." Mr. Vogt recommended as well that the applicant solicit input from the Township's Department of Public Works and the Police Department's Traffic Safety Unit "regarding the need for a turnaround."

At the Board hearing, many neighbors on the narrow and long block took to the podium to demand that the Planning Board not grant approval for these duplexes unless Mr. Bitton provides a full-size cul-de-sac bulb, noting that there were 2 fires on the block over the past few years and it was practically impossible for emergency vehicles to get in and out of the block safely.

In response, Graham MacFarlane, the developers' engineer testified that the New Jersey Residential Site Improvements Standard (RSIS) which governs the rules for cul-de-sac bulbs does not require a proper cul-de-sac bulb in this case because most of the road was developed prior to enactment of the RSIS in 1993.

Despite this testimony, - due to intense pressure from the neighbors, - the Planning Board denied the application, instead sending the developers back to the drawing board to provide for a proper cul-de-sac bulb.

As this application seeked variances, Mr. Bitton had no legal recourse against the Board.

In September 2021, Mr. Bitton returned to the Board seeking for a "reconsideration" of his previous denial, on the basis that he could have proposed another Site Plan which was "fully conforming" but he felt that the plan (with its variances) which was previously denied was a "better planning alternative."

The "fully conforming" plan included an undersized 20 foot wide by 30 foot deep hammerhead turnaround.

Engineer Graham MacFarlane testified to the Board that this undersized turn-around was the best they could provide unless they replaced one duplex structure with a single family home, which, ironically is not a permitted use under the Township's zoning ordinances for this "Multi-Family zone" and therefore a Single Family Home would require a Use Variance from the Zoning Board.

"Slight issue" with this "fully conforming" application was that the Board Engineer calculated that although the alternative plan did indeed eliminate the minimum lot area variance, the minimum rear yard setback variances still remained and it was therefore not "fully conforming."

Additionally, the Board Engineer calculated that instead of lying fully within the public right-of-way, the proposed hammerhead turnaround will encroach onto one of the duplex lots and will require an easement to the Township in order to be proposed for public use.

The Board reiterated that they wanted to see a full-size cul-de-sac bulb, and denied Mr. Bitton's "request for reconsideration." The Board also reminded Mr. Bitton to solicit input from the Police Department's Traffic Safety Unit and Fire Chief regarding the need for a turnaround.

Eventually, in April 2022, Mr. Bitton returned to the Board "fully armed." His engineer Graham MacFarlane presented an application for the same 6 duplex units with a plan to provide either a hammer-head turn-around or an undersized cul-de-sac bulb, testifying that either proposal is fully compliant with both township and state standards, even though school buses can only turn-around on full sized cul-de-sacs.

Mr. MacFarlane testified to the Planning Board that the Fire Chief and Police Department's Traffic Safety Unit reviewed the plans; the fire chief stated no preference between a hammer-head turn-around or an undersized cul-de-sac as long as No Parking signs were posted, the Police Department's Traffic Safety Unit stated a preference for an undersized cul-de-sac as there is less illegal parking on undersized cul-de-sac bulbs.

Mr. MacFarlane further testified that this was finally a variance - free application and therefore it should be approved by-right.

Citing these nods of approval from the Township officials, Board Engineer Terry Vogt urged the Board to "settle the matter" and approve the application with either a hammer-head turn-around or an undersized cul-de-sac.

The neighbors again took to the podium to demand that the Planning Board not grant approval for additional duplexes unless Mr. Bitton provides a proper cul-de-sac bulb.

Due to continued urging of the neighbors, the Planning Board again stood their ground, - despite dire warnings of its own professionals - and denied the application.

On May 24th the Board adopted its Resolution of Denial which states:

"While the application represented a conforming subdivision, it is the duty of the planning board to weigh the evidence and to exercise its discretion in the event of significant concerns on the board of the board. 

"The Board ultimately rejected the application on the basis of significant traffic safety concerns regarding the lack of a full-sized cul-de-sac to provide adequate safety in this neighborhood. 

"The Board found that an approval of this application would have significant detrimental effects on the safety of the neighborhood. 

"The Board finds that the applicant’s proposal does not further the purposes of zoning pursuant to N.J.S. 40:55D-2:  

1. The applicant’s proposal is not the best planning alternative. 

2. The proposed development would not secure safety from fire, flood, panic and other natural and man-made disasters.

"Accordingly, the Board hereby denies the applicant’s request for major subdivision approval."

As first reported here on FAA News, following this denial, on July 8th, Mr. Bitton filed a lawsuit in Ocean County Superior Court seeking to overturn the Board's denial of the application.

The Complaint in Lieu of Prerogative Writs filed by Attorney Adam Pfeffer Esq. argues that the application was a permitted use in the zone and variance-free, thereby making it a by-right application, and therefore the Board's denial of the application was "arbitrary, unreasonable, and capricious," and the denial should be overturned.

The lawsuit also requests that the Plaintiff's own legal fees be reimbursed by the Township taxpayers.

As previously reported here on FAA News, Board Attorney John Jackson has submitted an Answer to the Complaint denying all allegations, and seeking for the Board's denial to be upheld.

Mr. Pfeffer Esq., representing Mr. Bitton, has now filed a Trial Brief arguing that the Planning Board does not have jurisdiction to demand a cul-de-sac bulb where RSIS does not require one, nor does the Board have latitude to deny a variance-free application due to off-site traffic conditions, and therefore the Board's denial of the application was arbitrary, capricious, and unreasonable, and should be overturned.

Mr. Pfeffer wrote:

"Consistent with the Residential Site Improvement Standard the Premises does not require a cul-de-sac. The Residential Site Improvement Standards (RSIS) do not require that developments built before the rules became operative (June 3, 1997) be improved to meet the standards. This is true even when a proposed development relies on an existing development for its street network, sanitary sewer system, water supply system, or stormwater management.

"In sum, plaintiff complied in all respects with the land use ordinances of the Township of Lakewood, and did not require, nor did it seek any variances therefrom.

"The board indicated concern about the turn-around and possible need for a cul-de-sac. Plaintiff’s Engineer correctly argued the application was fully confirming and the ordinances did not require any cul-de-sac at the end of the street. Further the Plaintiff’s Engineer stated the RSIS is the only document that would require a turnaround, and due to the nature of the location the RSIS did not apply to that Premises. In addition, despite the application conforming without these suggestions, the Plaintiff took an additional step to go beyond the conforming ordinance, and proposed a 22 foot wide hammerhead, as requested by the board and its professionals. Plaintiffs’ attorney Mr. Kociuba went as far as to introduce an Exhibit which was a plan to show a hammerhead installed. Mr. Kociuba confirmed that the Fire Department approved the application without a turnaround.

"The plaintiff respectfully submits that the Planning Board failed to apply the correct standard of review and erred in denying the plaintiff's application for Preliminary and Final Major Subdivison Approval, thus acting in an arbitrary and capricious manner. The Planning Board acted in an unreasonable and arbitrary manner because (1) the proposed development is permitted in the zone, and; (2) no variances were required, and none were sought. Accordingly, Plaintiff’s application to the Planning Board was fully conforming with the land use ordinances of the Township of Lakewood, and the Planning Board should have as a matter of law adopted a positive resolution granting Preliminary and Final Subdivision Approval."

Mr. Pfeffer cites case law to make his case as to why, "even though the Planning Board in Lakewood did not like either ordinance they were duty bound as a matter of law to abide by their terms, and approval of Plaintiff’s application for Preliminary and Final Major Subdivision Approval."

Regarding applications with variances, the New Jersey Municipal Land Use Law (40:55D-70) provides that "no variance or other relief may be granted... without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance."

However, for fully compliant applications, the MLUL (NJSA 40:55D-46 b) provides that "the planning board shall, if the proposed development complies with the ordinance and this act, grant preliminary site plan approval."

Mr. Pfeffer cites that the New Jersey Supreme Court, in a 1994 case known as Pizzo Mantin Group vs. Twp. of Randolph, has established that planning boards do not possess the authority to deny an application for development solely on the general provisions contained in the MLUL. "Because a municipality must exercise its zoning and subdivision powers by enacting ordinances, the conclusion follows that the municipality may not exercise such powers directly on the general statutory purposes of the MLUL. Municipalities may effectuate those statutory purposes only by incorporating them as standards in duly-enacted zoning and subdivision ordinances."

In this case law, the State's highest court declared that without clear standards established in the local ordinance as to what is prohibited and what is required, board members are not free to unilaterally utilize their own judgment, as that would be an invitation to inconsistency, controversy and arbitrary action by boards, and therefore, unless the applicant fails to abide by the standards in the ordinances, a board has no choice but to grant an application, and that Board members utilizing their own judgement to make inconsistent decisions is the "antithesis" of the Municipal Land Use Law's intended framework which was that there be consistency, uniformity and predictability in the subdivision approval process.

Mr. Pfeffer also cited case law from PRB Enterprises v. South Brunswick Planning Board, in which the Court considered the validity of a zoning ordinance that purported to authorize a planning board to deny site plan approval for an otherwise permitted use based on the volume of traffic the use would likely generate. Justice Stein writing for a unanimous Court held: The role of the planning board, with respect to permitted commercial or industrial uses, is the grant of denial of a site plan approval. Although site plan review affords a planning board wide discretion to insure compliance with the objectives and requirements of the site plan ordinance, it was never intended to include the legislative or quasi-legislative power to prohibit a permitted use.

"Pursuant to PRB, a planning board does not have the power to deny an otherwise permitted use based on the volume of traffic it would likely generate. Likewise, the Planning Board in Lakewood does not have the power to deny Plaintiff’s conforming application based upon the potential parking congestion that it might generate," Mr. Pfeffer asserts.

Mr. Pfeffer also cited case law from a case close to home. Judge Havey sitting in the Law Division in Ocean County held in Lionel’s Appliance Center v. Citta (1978) that a planning board should not consider off-site factors in granting a site plan approval. There, Joseph Citta proposed two restaurants at the intersection of State Highway 37 and Hooper Avenue in Dover Township (now Toms River). The planning board approved the application. Objectors filed suit, and the court held that traffic problems with Citta’s application at the intersection were not subject to the review of the planning board. Accordingly, as in Citta, the Planning Board in Lakewood did not have the authority to deny Plaintiff’s application because of potential off-site parking concerns.

"For all of the foregoing reasons, the plaintiff respectfully submits that pursuant to the case law and statutes cited herein, this court is empowered and thereby urged to issue an order reversing Resolution SP# 2514 adopted by the Lakewood Township Planning Board thereby granting the Plaintiff Preliminary and Final Major Subdivision Approval in conformance with its application for development," concluded Mr. Pfeffer.

The Planning Board has until March 14 to file their Trial Briefs. Mr. Pfeffer will have an opportunity to respond with a Reply Brief.

The trial is scheduled to be held on Monday, March 27, 2023.

Lakewood Township's taxpayers will fund the legal fees incurred by the Planning Board to fight the lawsuit. Based on the outcome of the lawsuit, the winning party may have their own legal fees awarded.

If the Planning Board does somehow win this case it would represent a landmark victory for land use boards statewide.

The major legal question will be as to what basis, if any, the Board has, to deny seemingly by-right applications on the assertion that such applications do not "further the purposes of zoning."

This is not the only denial of a "by-right" application the Planning Board is currently fighting to defend.

As previously reported here on FAA News, Solomon Halpern of Besadar Holdings, represented by Attorney Rob Shea, is suing to overturn the Planning Board's very uncharacteristic denial of a "mostly conforming" application for 9 new single family homes on a cul-de-sac road along the southwest side of Fourteenth Street, southeast of Curtis Lane.

The neighbors who originally opposed the application at the Planning Board public hearing are now intervening in this lawsuit. Initial trial briefs have been filed. The trial date is also scheduled for Monday, March 27.

As more recently reported here on FAA News, Lakewood developer Franklin Shapiro has filed a lawsuit seeking to overturn the Planning Board's denial of his application which sought approval to subdivide the rear yard of 30 Independence Court into a second lot which would have a new single family house and driveway on the north side of James Street, just west of its signalized intersection with Sunset Road.

Judge Francis Hodgson is scheduled to hold a pretrial status conference on the matter for Thursday, February 16. All parties will need to file pretrial memorandums by February 9. They were also directed to submit a transcript of the Planning Board public hearing of the application.

The trial date is likely to be determined at the upcoming pretrial status conference.

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