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The Law Office of Jan Meyer Esq. and Associates has once again prevailed against the Lakewood Planning Board.

Moments ago, Ocean County Superior Court Assignment Judge Francis Hodgson denied Yeshiva Toras Chaim's Motion for Reconsideration which sought to reverse Judge Marlene Ford's earlier ruling overturning the Lakewood Township Planning Board's approval of the yeshiva'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, Superior Court Judge Marlene Ford overturned the Lakewood Township Planning Board's approval of Yeshiva Toras Chaim's dormitory expansion.

As previously reported here on FAA News, Yeshiva Toras Chaim subsequently 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."

Despite the fact that, as previously reported here and here, and here and here on FAA News, the members of the Planning Board have, since the outcome of Judge Ford's ruling, pushed back against hearing dormitory applications, Planning Board Attorneys John Jackson and Jilian McLeer wrote to the Court that the Board "joins in with defendant, Yeshiva Tora Chaim’s motion for reconsideration for all of the reasons stated in the moving papers."

At today's court hearing, Mr. Jackson told Judge Hodgson that his pushing the Board to continue to approve dormitory applications despite Judge Ford's ruling that they lack jurisdiction to do so, is a result of that "the Township governing body wants the Planning Board to still have jurisdiction to approve dormitories as an accessory use."

The neighbors, represented by Attorney Jonathan L. Leitman, Esq. of the Law Office of Jan Meyer Esq. 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, 440 NJ Super 382 (App. Div. 2015). 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 caselaw 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 Adj., 202 N.J. Super. 312 (App.Div.1985). 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 dormatories in other zones is that this is not an “unforeseen use”. Rather, this is a forseen 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," Mr. Leitman concluded.

At oral arguments held this morning, Judge Hodgson concluded that a Motion for Reconsideration is appropriate only when the Court erred in its decision or misapplied the correct standard of review, and not simply when the losing party is dissatisfied with the court's ruling.

As such, Judge Hodgson denied to reconsider Judge Ford's previous ruling.

Although this court ruling is unreported, it will definitely set the tone for future dormitory applications in Lakewood, which the Planning Board can rightfully say requires a Use Variance from the Zoning Board.

This ruling also jeopardizes Migdal Bais Yaakov who just recently received Planning Board approval for their dormitory pending the outcome of today's motion hearing.

As previously reported here on FAA News, this ruling also jeopardizes Birchas Chaim's recent dormitory approval and a lawsuit has already been filed seeking to overturn their approval.

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Anonymous said...

Mazel tov!!

Danny R. said...

John Jackson's can rant until he's blue in the face and try to pressure the planning board members to claim jurisdiction on dorm applications - But the court has already ruled TWICE that he is wrong and out of line.

What should happen is that the dorm applicants go in front of the Zoning Board to seek approval. This has indeed occurred where a local yeshiva recently applied to the zoning board for its dormitory - and they were in fact Approved! So there is zero reason for the big fuss being made by John Jackson and the defendant applicant school. All they're doing is making smoke where there's no fire. All they need to do is apply to the zoning board like other applicants have done. It's that simple!

Anonymous said...

Much easier to get Chairman Halberstam on your side. Doesn't cost that much.