Since their third attempt turned out to be "not the charm," Lakewood Township's Zoning Board has, for the fourth time, placed Lake Terrace's application for a Use Variance to legalize the use of their existing banquet and concert hall on their upcoming meeting agenda.
Lake Terrace submitted this Zoning Board application in response to 2 separate lawsuits filed against them by their industrial neighbor Clayton Associates, and their property owner Sudler, which allege that Lake Terrace never received proper approval from the Township's Zoning Board. (Read more on their ongoing legal saga here on FAA News.)
As previously reported here on FAA News, the Board scheduled a Special Meeting to hear this application back in October 2022.
However, that hearing was cancelled after Rob Shea Esq., an attorney representing an objector, submitted a letter to the Board prior to the hearing arguing that the floor plans and valet parking plans were first made available to the public less than the statutorily required 10 days prior to the hearing, which was designed to give the public adequate time to review the application prior to the Board hearing on it, and therefore the Board lacked jurisdiction to hear the case as originally scheduled.
Adam Pfeffer Esq., the attorney representing Lake Terrace, responded in a letter that he "disagrees with the disagrees with the substance of the correspondence, but that the hearing should be carried out of an abundance of caution."
Thereafter, as previously reported here on FAA News, another Special Meeting was scheduled in November 2022.
That meeting, however, was also cancelled because, prior to the meeting, Attorney Rob Shea wrote to the Board that they failed to provide "adequate notice" of the special meeting by only publishing notice in one newspaper and not two.
The New Jersey Open Public Meetings Act (NJSA 10:4-7 & 8) provides "the right of its citizens to have adequate advance notice of and the right to attend all meetings of public bodies at which any business affecting the public is discussed". "Adequate notice" means written advance notice of at least 48 hours, giving the time, date, location and, to the extent known, the agenda of any regular, special or rescheduled meeting... which shall be... delivered to at least two newspapers... designated by the public body to receive such notices because they have the greatest likelihood of informing the public within the area of jurisdiction of the public body of such meetings...
As previously reported here on FAA News, yet again the Zoning Board published legal notice for a Special Meeting on the application to be held Wednesday, February 1, 2023.
That meeting, however, was also cancelled because, prior to the meeting, Mr. Shea wrote to the Board that their Special Meeting notice failed to adequately state all the uses that Lake Terrace's application seeks approval for, as well as to state whether "formal action may be taken at the meeting."
Mr. Shea also wrote to the Board that their 2022 and 2023 "annual meeting notices" failed to meet the "adequate notice" requirement as they were required to be published in two newspapers and they were only published in one newspaper, and consequence the Board did not have vested authority to hold meetings in 2023 and therefore any meeting held on February 1 would null and void.
Subsequently, seeing that Mr. Shea got the Board to cancel 3 scheduled hearings due to numerous legalities with the meeting notices, and fearing that they may never be able to even get to the hearing, as previously reported here on FAA News, back in February, Lake Terrace switched tracks and filed a Motion in court to either completely lift all of their court orders and order to pay legal fees, or at least to waive enforcement of these orders pending the outcome of their Zoning Board appeal.
As previously reported here on FAA News, Mr. Shea shot back not only with Opposition to the motion, but also with a Cross-Motion to Enforce Litigants Rights asserting that Lake Terrace violated their court orders and therefore they should be shut down completely until they receive all their approvals.
As previously reported here on FAA News, Judge Hodgson ultimately denied both Lake Terrace's motion as well as Sudler's Cross-Motion, however he did order that all enforcement of the court orders will be stayed for 60 days to permit for the Zoning Board hearing to proceed.
If their Zoning Board hearing does actually proceed this Monday night, Clayton Associates and Sudler will be fully represented by Mr. Shea as well as their own planners and traffic experts who will testify in strong opposition to the granting of the Use Variance.
Parking is expected to be the number one hot issue.
Lake Terrace currently has 379 parking spaces. Due to the numerous court hearings they had recently regarding the congestion caused to the adjacent roadways by all the on-street parking, Clayton is likely to argue that Lake Terrace does not have sufficient parking to be granted a Use Variance.
Lake Terrace has submitted plans to add valet parking during concerts in order to increase their parking capacity.
Even if the Zoning Board does grant the requested Use Variance, it's unlikely that concerts will restart very soon, because the New Jersey Department of Transportation requires a special approval from them for every Use Variance a Zoning Board grants in the Airport Hazard area, and, on February 7, 2022, at the request of Mr. Shea, Judge Ford signed an amended Order to say "Defendants are enjoined from using the property as a concert hall until such time that there is a change in the use authorized by the Lakewood Zoning Board of Adjustment and Defendants have satisfied any and all conditions contained within such resolution" - likely those conditions will include getting DOT approval which will likely take some time.
As previously reported here on FAA News, at a Court hearing back in December, Mr. Shea argued to Judge Ford that the Use Variance appeal may need to be moved from Lakewood to Toms River's Zoning Board as there may not be a sufficient number of board members in Lakewood without a conflict of interest.
The New Jersey Municipal Land Use Law (NJSA 40:55D) requires an affirmative vote of 5 Zoning Board members in order to grant a Use Variance. The MLUL (NJSA 40:55D-69.1) also provides that if the Zoning Board lacks a quorum because any of its members are prohibited from acting on a matter due to their personal or financial interest therein - whether direct or indirect - Class IV members of the planning board shall be called upon (in order of seniority of continuous service to the planning board) to serve, for that matter only, as temporary members of the Zoning Board.
Mr. Shea asserted that numerous Zoning and Planning board members have "direct or indirect personal or financial interest" to Lake Terrace and therefore the Use Variance appeal may need to be moved out of Lakewood and over to Toms River's Zoning Board.
Time will tell if Mr. Shea will revive this argument.
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