The Ridge Avenue neighborhood, represented by Attorney Jan Meyer Esq., have filed Opposition to Yeshiva Toras Chaim's Motion for Reconsideration regarding their dormitory expansion.
The court hearing has been adjourned one more week to Friday, March 10.
As was previously reported here on FAA News, Superior Court Judge Marlene Ford overturned the Lakewood Township Planning Board's approval of Yeshiva Toras Chaim's dormitory expansion on the basis that the Township Committee has not deemed dormitories to be a permitted use in the residential zoning district and therefore the Board lacked jurisdiction to approve the non-permitted use.
As previously reported here on FAA News, Yeshiva Toras Chaim filed a Motion for Reconsideration of this judgement.
Attorney Matthew Fiorovanti Esq. wrote to the Court "the court's decision in this regard will have broad impacts in the Township. There are dozens of schools with dormitories located in the Township. By virtue of the court's ruling, every school with a dormitory has been converted into a preexisting, non-conforming use. If any of these schools wish to expand to accommodate the growth of the student body - like YTC in this case - the school would need to go to the Zoning Board for a Use Variance, which requires satisfying an enhanced standard of proof of the positive and negative criteria. The court's ruling therefore substantially burdens the existing community by placing a severe restriction on an existing school's ability to expand or modify its facilities."
Planning Board Attorney Jilian McLeer apparently feels that the Board agrees. She wrote to the Court "Please accept this letter in confirmation that this defendant joins in with defendant, Yeshiva Tora Chaim’s motion for reconsideration for all of the reasons stated in the moving papers."
The neighbors, represented by Attorney Jonathan L. Leitman, Esq. of the Law Office of Jan Meyer Esq. have just filed Opposition to the motion, arguing that it must be denied as it does not meet the standard of a motion for reconsideration, which requires a showing that the court erred or that something was "not available to the Defendants at the time of the initial motion."
Mr. Leitman wrote:
A motion for reconsideration “does not provide a litigant with the
opportunity to raise new legal issues that were not presented to the Court in the
underlying motion.” Pitney Bowes Bank, Inc. v. ABC Caging Fullfillment. The movant must show an abuse of discretion by
the underlying court.
The Defendants rely entirely on the first method of reconsideration, alleging that Judge Ford’s considered opinion was palpably incorrect. Of note, despite the Defendants’ wrongful inclusion of an affidavit, there is no assertion or showing that anything contained therein (which is largely irrelevant) was not available to the Defendants at the time of the initial motion. Accordingly, such affidavit should not be considered.
The Court applied the correct standard of review.
Judge Ford stated that it is “clear to the Court” that this is a second primary use on the lot and “not an accessory use even under an expansive definition.” In other word, Judge Ford found the decision made to be unreasonable, as there was no way to interpret the statute in a reasonable manner in which it comports with the decision of the Board...
“Although courts defer to the expertise of municipal agencies in reviewing discretionary exercises of an agency's statutory powers, the interpretation of an ordinance is primarily a question of law.” Wyzykowski v. Rizas...
The bulk of the Defendant’s application does not involve meaningfully countering
Judge Ford’s opinion, but ignoring it. Judge Ford held that “the jurisdiction of the Board
is driven not by a subjective analysis of what within the community of Lakewood the
Board feels is appropriate and just in connection with an application, but what the law views, and what is authorized under the Municipal Land Use Law from a bigger
perspective. And that not only to protect the applicant… but also to protect the
community and the people… with the expectation that… there would not necessarily be
a highly intense use in terms of a many unit development.”
In other words, Judge Ford agreed that the definition of the word “school” in the
UDO is not governed by some internal use within the township of Lakewood, but by the ordinary meaning of the word. The Defendants cite to no case law that is contrary to this
position. Instead, they simply parrot the position that the previously took- that if people
in Lakewood use the word “school” in a manner that includes “dorm” then that is
sufficient. Judge Ford did not disagree with this determination. She just (correctly)
found it to be irrelevant. This is because the definition of a word, and what is
customarily associated with that word, is based on “a bigger perspective." As
recognized by Judge Ford, this is critical, to establish meaningful rules that have
predictable effects for people. An individual looking to purchase a home in Lakewood in
an R-15 zone would be on notice that a school may be in their zone. They would not be on notice that large dorm buildings may be built, without any use variance, since that is
simply not what is customarily associated with the term “school.”
As cited by the Defendants, the use must be “customary," which means that it must be “so
necessary or commonly to be expected that it cannot be supposed that the ordinance was intended to prevent it[.]” State v. P.T. & L. Construction Company, Inc...
There is simply no reason, whatsoever, that “logic and reason” would necessitate
permitting dormitories in any location that schools are permitted. Nor is there any reason that a dormitory is so necessary to schools that the UDO cannot possibly to
intended to exclude them. The overwhelming majority of schools- nationwide, statewide
and countywide, do not use dormitories. It would be wholly logically consistent for the UDO to permit schools but not dormitories.
Indeed, logic and reason dictate a school with a dormitory to be materially
different from a school without a dormitory. Schools without a dormitory are, primarily,
neighborhood schools, serving the neighborhood. Schools with dormitory can draw
students from beyond the narrow geographical area. Schools without dormitories
largely cease to making noise at the end of the school day. Schools with dormitories
create noise around the clock. In schools with dormitories, excepting certain defined
times, students are primarily in class and well supervised. In schools with dormitories, the nature of the supervision of the students, on the whole, drops precipitously at the
end of the school day. It is wholly logical for the Ordinance to provide that a school
might be appropriate in areas that schools with dormitories are not.
"The [proposed accessory] use must be one which is subordinate and minor in
significance." Charlie Brown of Chatham, Inc. v. Board of Adjustment. Providing a place to live for large numbers of people is simply not “minor in significance.”
By way of comparison, the actual list of accessory uses provided by the UDO includes items that are actually “minor” in how much the usage is changed by the accessory use. The UDO Sec.18-902(D)(3), lists, as accessory uses, a private residential garage, a shed, a greenhouse, a private swimming pool and a small home occupation. The Defendants’ wholly ignore this “minor in significance” prong.
The Defendants’ argument herein is similar to that considered, and rejected, by the New Jersey Supreme Court in Wyzykowski, which found that an application of the general meanings of the words of the statute was what was needed, and if the longstanding practice was not in conformance with the law, it was not proper.
The Defendants argue that Judge Ford erred in considering the fact that the UDO
considers the dormitories as a primary use in other zones means that they did not want
them to be an accessory use in this zone. This is a wholly logical position. The
Defendants cite to case law for the proposition that a list of accessory uses is not meant
to be exclusive. The reasoning behind this is because of “the impracticality of defining
in advance every permissible accessory use,” as “boards and courts will undoubtedly
have to address unforeseen uses.” Tanis v. Township of Hampton.
What Judge Ford adduced from the UDO explicitly providing for dormitories in other zones is that this is not an “unforeseen use”. Rather, this is a foreseen use, that the Board decided to allow in certain zones, but not in others.
In any event, Judge Ford correctly determined that, regardless of the local practice, the definition of the word school does not include a dormitory, as an accessory use.
The Defendants further argue that the specific nature of this particular school
means that dorms are particularly necessary for this school. That might be an
appropriate argument for the zoning board, but it is certainly irrelevant to the instant
inquiry. The question before the Court is whether a dormitory is an accessory use to
“schools," such that the planning board would have jurisdiction over that matter.
Nothing about the particulars of the school in question and the necessity of a dorm for
its continued viability is relevant to that question of statutory interpretation.
For all of the foregoing reasons, the Defendants’ motion for reconsideration
should be denied, in its entirety.
Yeshiva Toras Chaim has not yet filed their Reply Brief.
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