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The New Jersey Appellate Division today released a decision upholding Lakewood Township Planning Board's July 2019 approval of Bais Reuven Kamenetz's application for a yeshiva - which turned out to include the Ridge Terrace banquet hall, with no notice to the public - on Ridge Avenue near Brook Road, and an adjacent 15-unit Farmer's Drive Subdivision off of Ridge Avenue.

The 2-panel court found that simcha halls which are located inside schools can be considered an accessory use, and do not require a Use Variance from the Zoning Board because "the room is incidental and subordinate to the main use of the property as a school."

The applicant's notice, published by Attorney Miriam Weinstein, informed the neighbors that the application is for "Preliminary and Final Major Subdivision Approval to subdivide the existing tract into 16 new lots. A school is proposed on one of the lots. The other 15 lots will be developed with single family homes."

The notice failed to mention any proposed banquet hall.

At that Planning Board hearing the applicant's professionals testified that there would be a maximum of 8 school buses serving the school; an off-road bus loading zone would accommodate 6 school buses and the bus drop-off and pick-up times would be staggered so there would never be more than 6 buses on-site at a time.

The Board resolution does not expressly delineate how many students were proposed. However, the applicant submitted a traffic study which did specifically state that there would be a maximum of 361 students. The Board engineer incorporated that number into his review letter to the Board, which became part of the resolution of approval as Exhibit A.

Despite not having provided adequate notice to the neighbors that their application proposed a banquet hall, the applicant testified to the Planning Board that there would be a Simcha Hall (banquet hall for private events) which would be for "smaller events, up to 225 guests."

The application subsequently received Ocean County Planning Board approval.

Following these approvals, a group of neighbors met with representatives of the builder and school to discuss neighborhood and community issues arising out of the proposed construction. At those meetings, the representatives of the builder and school informed the neighbors that the school is actually intended to grow to 800 students over the next 3 to 4 years, and 15 to 16 buses would be needed to transport all these students to school.

In light of this new information heard directly from the developers, the group of neighbors filed a lawsuit seeking to overturn the planning board's approval.

State law permits people to file suits seeking to overturn Board action in cases where the Board decision is arbitrary, capricious, or unreasonable - but only within 45 days of the Board publishes their memorialization of the approval.

This lawsuit was filed past the 45 day limit in part because the Township's Zoning Officer Fran Siegel refused to release the pertinent architectural plans which would reveal the school's true capacity, until way after the 45 day limit.

However, the neighbors argued that the court should still vacate the Board approval on the premise that the applicant misrepresented the scope of their plans to the Board - in light of the fact that the developers only disclosed the true scope of the school's intended enrollment after the Board approval.

The neighbors also charged that the Board lacked jurisdiction to hear the application because banquet halls are not a permitted use in this zone and therefore the application required a use variance which only the Zoning Board of Adjustment could grant, and the planning board can not grant.

Finally, the suit charged that the Board lacked jurisdiction to hear the application because the Simcha Hall was not advertised in the legal notice the applicant sent to adjoining property owners prior to the planning board meeting.

Ocean County Superior Court Judge Marlene Ford ultimately upheld the Board approval, saying simply that the suit was not filed within the required 45 day timeframe, and that the complaint regarding the number of students is "speculative." However, Judge Ford did stipulate that the Board approval is specifically limited to 361 students and the neighbors could seek declaratory judgement if the school ever increases their student body without first returning to the Planning Board for a change in their approval.

The neighbors, in turn, filed an appeal to the Appellate Division of the New Jersey Superior Court, arguing that the Superior Court ruling should be vacated, and the 45 day limit to appeal should be waived because 1) the public notice was inadequate as it did not mention the Simcha Hall, 2) the Planning Board lacked jurisdiction as the Simcha Hall is not a permitted use, 3) the number of students and buses was fraudulently misrepresented (i.e. The complaint wasn't that the Board's approval was arbitrary, capricious, and unreasonable, but rather that the applicant fraudulently misrepresented its application.)

The school and its developer responded with 4 counts against the appeal; 1) the public notice was sufficient as it did "settle the nature of the matters to be considered", 2) Simcha Halls are "not a non-permitted use", 3) The Trial Court is correct that the complaint regarding the number of students is "speculative", and 4) the neighbors failed to put forth an argument germaine to the Subdivision resolution of the planning board.

The school argued in their brief that "Plaintiff alleges that there was a misrepresentation as to the number of students ... and Simcha Hall... However, if Plaintiff performed due diligence it could have easily determined that the plans submitted to the Planning Board references 27 classrooms, and determined the maximum capacity under the building code." The school then asserts that despite them not providing adequate notice regarding the simcha hall, the neighbors were aware of it "through the construction plans provided to the planning board, and through the testimony provided at the public hearing, as well as on the resolution."

As previously reported here on FAA News, at some point the Ocean County Planning Board got wind of the alleged fraudulent misrepresentations and they schlepped the applicant to return for a rehearing. At the rehearing, the developers submitted a new traffic study, admitting that the school building could fit over 700 students and that in fact, they anticipate having 15-16 school buses doing pick up and drop offs. The county also asked more in-depth questions regarding the proposed Simcha Hall (which they originally did not disclose to the county). As a condition of the approval, county officials restricted the Simcha Hall to being used only after-school hours.

Since then, County officials have been paying much closer attention to Lakewood school applications, to see if banquet halls are proposed, so they can ensure that traffic impact is considered.

As previously reported here on FAA News, back in May 2022, seeing that the county forced the application to return with updated plans and a more detailed presentation of the scope of the project, the Lakewood Township Planning Board also cajoled the developers to return to the township for an additional review.

The Board agenda stated that the purpose of the meeting was to consider whether "the county approval is consistent with the township approval."

The hearing took quite a while as numerous neighbors as well as representatives of the school spoke on the application.

Some neighbors remarked that the new Simcha Hall was recently advertised in BP Weekly and the ads stated that the hall could fit "over 300 guests.' (When the Simcha Hall was originally approved by the planning board, Traffic Expert Scott Kennel testified that the hall would fit only 225 guests.) Curiously, the number of guests was then omitted in future ads.

One neighbor added that she called the Simcha Hall office to reserve the hall and asked if she could reserve the room for 350 guests. The secretary told her that "until after the planning board meeting we are telling people that we can only fit 300, but after the planning board meeting we will be able to advertise for more"!

Amazingly, the applicant's attorney responded that that the 300 number was simply a "publishers typo!"

Ultimately, the Board did a deadlock 3-3 vote on the matter. Board Chairman Moshe Neiman attempted to suggest that, as a compromise, the Board vote to approve with a condition that the applicant increase parking and room for more school buses to load on-site and to loop around to another exit, however, the Board failed to muster enough support for this specific proposal.

Board Attorney John Jackson interpreted the Board's split vote to mean that the status quo remains and the original resolution remains in force. As such, the only recourse to seek was in the Appellate Division.

"After reviewing the record, including the transcripts of the Board's hearing, we affirm for the reasons stated by Judge Lynch Ford," wrote Judges Jessica R. Mayer and Catherine I. Enright, in a decision just released.

"Here, Judge Lynch Ford found plaintiff's complaint in lieu of prerogative writs was filed one year and two months after the forty-five-day time requirement for filing an appeal from the Board's resolutions of approval for the Project. She also found plaintiff failed to justify enlargement of the time limitation by demonstrating any of the recognized exceptions... We agree with Judge Lynch Ford's finding that plaintiff's complaint is time barred for the comprehensive reasons stated in her June 22, 2021 written decision. 

"We also comment on plaintiff's argument that the forty-five-day time limit should have been enlarged because the Applicant's notice to the public failed to comply with N.J.S.A. 40:55D-11. The notice requirements under N.J.S.A. 40:55D-11 provide that an applicant must state "the nature of the matters to be considered." Plaintiff contends the notice failed to include any mention of a simcha hall and, therefore, the notice was defective and the defect justified enlargement of the forty-five-day period of limitations. We reject this argument."

The Appellate Division rejected the argument that the notice was deficient simply because the Plaintiff's attorney failed to submit to the court the evidence - the faulty notice.

"While plaintiff raises this argument, it failed to provide a copy of the notice as part of the record on appeal. Nor did plaintiff's complaint or amended complaint cite the language from the Applicant's notice to the public. Thus, plaintiff's assertions are untethered to any competent evidence in the record. Here, plaintiff failed to include in the record on appeal the evidence, if any, submitted in support of its defective notice argument. Thus, we reject plaintiff's argument related to the alleged defective notice.

"We also reject plaintiff's claim that the Applicant required a use variance for the simcha hall under N.J.S.A. 40:55D-70(d)(1). According to the expert testimony before the Board, the simcha hall would be located in the school's finished basement and serve as an accessory use to the school. Under Lakewood's Uniform Development Ordinance, an "accessory use" is "[a] use . . . that is customarily incidental and subordinate to that of the principal and on the same lot." The principal use of the lot is for a school and the Applicant provided testimony that the use of the simcha hall would be incidental and subordinate to the school as an accessory use.

"[A]n accessory use is implied as a matter of law as a right which accompanies a principal use." Shim v. Washington Twp. Planning Bd. "Zoning ordinances which permit 'customarily incidental' accessory uses to the main activity permit, by implication, any use that logic and reason dictate are necessary or expected in conjunction with the principal use of the property." Charlie Brown of Chatham, Inc. v. Bd. of Adj. for the Twp. of Chatham.

"Here, the principal use of a portion of the subdivided property is for a school. The simcha hall is an accessory use because the room is incidental and subordinate to the main use of the property as an elementary school. As an accessory use, the Applicant did not require a use variance," the court decision concludes.

Time will tell if and how this unpublished court ruling will affect Lakewood Township's new ordinance legalizing banquet halls as an accessory use in schools. As previously reported here on FAA News, Ocean County Superior Court Judge Francis Hodgson is scheduled tomorrow to hear oral arguments on that separate matter.

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Anonymous said...

Basically, Ron Gasiorowski is to blame as he didn't bother to submit the super important piece of evidence - Kaminetz's faulty legal notice!

Anonymous said...

Kaminetz tried to make themselves look good in court by saying that despite not having noticed the neighbors regarding the simcha hall, they did discuss it at the public hearing which the neighbors were invited to.

This is not entirely accurate as Board Member Moshe Raitzik was actually the first to ask if there was sufficient parking for the simcha hall. The school tried to not bring up that difficult topic.

Additionally, in order to receive favorable approval from the Board, Attorney Miriam Weinstein solemnly assured the Board that "there is no developer here. This school has not had the means to provide a proper facility and the only way the school can afford now to embark on this project is by subdividing and selling these lots."

This representation is wholly inaccurate. The developer was behind the housing project right from day one, and he used the school's shiny name and clapping parents to be able to receive variances for his houses.