LAKEWOOD PLANNING BOARD FIGHTS IN COURT VEHEMENTLY TO DEFEND DENIAL OF AN APPLICATION WHERE THE DEVELOPER REFUSED TO INSTALL A CUL-DE-SAC

Lakewood Township's Planning Board is fighting vehemently in Superior Court to defend their denial of developer Joseph Bitton's application on East 8th Street after he refused to install a full-sized cul-de-sac bulb on the long and narrow road, which, he claims is not required, in this particular case, 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 sought 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 sought 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 24, 2022 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 8, 2022, 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.

As previously reported here on FAA News, Mr. Pfeffer Esq., representing Mr. Bitton, 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.

Attorney Jillian McLeer, representing the Planning Board, has now filed the Board's Trial Briefs.

Ms. McLeer notes that  Mr. Magno, board engineer, did point out that the applicant required a design waiver from installing street trees. Furthermore, he opined that a hammer-head type turnaround at the end of the street would make sense.

Additionally, numerous neighbors opposed the application at the public hearing, citing traffic and parking concerns on the block, which would only get much worse if this application were approved.

Ms. McLeer cites case law that says "in reviewing a decision of a local planning board, the Court’s power is tightly circumscribed... A strong presumption of validity attaches to a municipal body’s actions which cannot be overturned unless found to be arbitrary, capricious, or unreasonable."

Ms. McLeer continues:

Furthermore, it is well-settled law that local officials, because of their familiarity with their community’s characteristics and interests, be allowed wide latitude in the exercise of their delegated discretion. Kramer v. Board of Adj., Sea Girt; Hawrylo v. Board of Adj., Harding Twp., Because variances tend to impair sound zoning,
a court should give “greater deference to variance denials than to grants of variances.” Medical Ctr. at Princeton v. Tp. of Princeton Zoning Bd. of Adjustment.

The Board did not act in an arbitrary, capricious, or
unreasonable manner in denying the application based on traffic, parking, and safety concerns.

There is no shortage of prior case law in New Jersey wherein the courts have held that the planning board may consider safety concerns in the grant or denial of a subdivision application.

In one particular case, the Court upheld a board’s denial of an application based on concerns over traffic safety and potential drainage and flooding problems, finding that while plaintiff may have met the specific bulk requirements of the development ordinance, that did not mean that the plaintiff was entitled to an approval of his subdivision plan. The Court found that the Board applied sound planning concepts to protect the public interest, thereby concluding that the existing physical constraints upon developing the parcel required rejection of the subdivision configuration as designed.

Concededly, in Pizzo, the Court found that the denial of a by-right subdivision based on the “broad purposes of the MLUL” rather than on the specific standards contained in the municipal subdivision and zoning ordinances was not a valid exercise of its authority to control subdivisions. Here, however, the Board did not base its denial on the “broad purposes of the Municipal Land Use Law." Rather, the Board had significant concerns regarding specific issues - as evidenced by specific examples - directly tied to this piece of property. The Board heard directly from individuals who live on Eighth Street, who commented that adding six new duplex units will compromise the safety of the block.

The Board heard from neighbors, with first-hand experience, that a “hammerhead” turnaround simply would not provide the maneuverability that a cul-de-sac turnaround would provide and would be blocked off. It was explained to the Board that there are four children’s play groups in the houses currently located on Eighth Street and insinuated that when individuals come to pick up the children, you “can’t move."

The Board was also aware of the fact that the Board engineer recommended an RSIS complaint turnaround, which was a full-sized cul-de-sac turnaround. The Board ultimately made it known to the applicant that the Board wanted to see provision of a full-sized cul-de-sac, and the applicant made it clear that it was not interested in exploring the provision of a full-sized cul-de-sac, which would require variance relief. Considering all of these very specific concerns related to parking and safety on Eighth Street, coupled with the fact that the applicant confirmed this application would be effectively adding another 24 cars to the already substantial traffic on the street, the Board felt that its overwhelming safety and quality of life concerns for the residents of Eighth Street prevented anyone from approving this application in good conscience.

The Lakewood Township Ordinance Section 18-602 specifies the standards and procedures for subdivision approval. Per the ordinance, the Board is to particularly consider the following, in pertinent part:

a. Preserve existing natural resources and give proper consideration to the physical constraints of the land;

b. Provide for safe and efficient vehicular and pedestrian circulation;

c. Provide for screening, landscaping, signing and lighting;

d. Ensure efficient, safe, and aesthetic land development;

Pursuant to Pizzo, a Planning Board must approve a subdivision unless it fails to comport with requirements that are specifically delineated in the duly enacted subdivision or zoning ordinances. In this case, the Board was referring to these specific provisions in the local ordinance when it denied this application based on safety concerns.

The Board conducted a full public hearing with adequate notice to the general public. It considered the recommendations of its engineer and the significant concerns voiced by the public. It also listened at length to testimony provided by the applicant and the applicant’s professionals. For any expert witness, the Board can accept all, some, or none of the professional’s testimony. Klug v. Bridgewater Tp. Planning Board.

The Board duly considered all evidence presented, including the substantial public comments voiced by several members of the public, and voted to deny this subdivision application for significant traffic and safety issues concerning the subject property and immediate area. The Board did not act in an arbitrary, unreasonable, or capricious manner in doing so for all the reasons outlined above.

Ms. McLeer further argues that the Board was not unreasonable in requesting an RSIS compliant cul-de-sac bulb, because, while Mr. Kociuba, plaintiff’s engineer, testified at the public hearing and Plaintiff submits in its trial brief that “development preceding through June 3, 1997 does not require that development built before the rules became operative be improved to meet the standard”, here the development at issue has not been built yet, and neither Mr. Kociuba nor plaintiff’s counsel provides any cited authority as to the contention that the lack of necessity of compliance holds true when a proposed development relies on an existing development for its street network.

In any event, the Board was presented with a review letter of its engineer wherein the engineer stated a clear recommendation that the design be revised to provide an RSIS compliant turnaround. The Board was carrying out its duty when it requested that the applicant provide an RSIS compliant cul-de-sac, and given the public comment received and the recommendations of its own engineer it was not acting unreasonably or capriciously in doing so, Ms. McLeer concluded.

The trial is scheduled to be held on Monday, March 27, 2023. Mr. Pfeffer will have an opportunity to respond with a Reply Brief prior to the trial date.

Lakewood Township's taxpayers will fund the legal fees incurred by the Planning Board to fight the lawsuit.

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 on this case is also scheduled for March 27.

Additionally, 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.

At a recent pretrial status conference, Judge Francis Hodgson scheduled the trial date for May 18. The parties will be required to submit trial briefs prior to that date.

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