NEWLY FILED LAWSUIT HIGHLIGHTS WHY IT'S IMPERATIVE FOR LAKEWOOD'S LAND USE BOARDS TO GET THINGS RIGHT THE FIRST TIME

A newly filed lawsuit highlights why it's imperative for Lakewood's land use boards to be more specific in the timeframe for adhering to the conditions in their approvals, yet at the same it also highlights the limits that the land use boards have in enforcing their Resolutions of approval.

The lawsuit involves a child care center on 6th Street.

According to the lawsuit, as far back as December 2017, 6th Street residents noticed that some construction had just commenced in their neighborhood.

Unaware of any land use approvals for the site, the neighbors contacted Township officials who explained that a zoning permit had just been granted for temporary school trailers on the site, which has an existing single family home.

The neighbors then ascertained that a State license had been granted for a child care center at that address. There is a school building across the street, but not at that specific site.

The neighbors sent correspondence to Township officials, opposing the granting of a Certificate of Occupancy for temporary school trailers, noting that; 1) the State license is for a child care center and not a school, and the Township ordinance requires a Site Plan review by the Planning Board for all child care centers, and 2) even if the trailers are for a school, the Township ordinance only permits temporary school trailers on a "school site," and while there is a school across the street which may be affiliated with these trailers, there is no "school site" on this residential property.

Despite this objection, the Township did grant a Certificate of Occupancy for the trailers.

Subsequently, the neighbors filed legal action seeking a writ of mandamus ordering the Township to enforce its own ordinances and take action to stop operation of the child care center in trailers without a Site Plan review.

The litigation went on for over 2 years with extensive discovery. Eventually, a hearing date was set for February 10, 2020.

On the hearing date, the school asked the court to hold off on a hearing, saying they had just finally submitted a Site Plan application to the Planning Board to legalize their existing trailers.

Ultimately, the neighbors realized that the Planning Board application was not for an actual Site Plan, but just for the Board to make a determination that they are exempt from submitting a full Site Plan.

At the Board hearing, the neighbors argued that Site Plan exemptions are appropriate only when a Site Plan was previously granted for the property and then there were some minor changes to the site that do not rise to the level of requiring a brand new Site Plan, whereas here there was no Site Plan previously approved for this site and therefore they should not be exempt from providing a full blown Site Plan for the trailers.

The neighbors argued that they had many safety concerns regarding the drop off and pick ups, site circulation and pedestrian crossing etc, and a proper Site Plan would be the appropriate way for the child care center operators to address these concerns.

For their part, the school testified to the Board that this property should be deemed a "school site" and eligible for school trailers with just a zoning permit and no Site Plan as the "single family home" is also used for a school office.

The Planning Board determined that the school is exempt from providing a full blown Site Plan, however they also agreed with the neighbors' safety concerns and directed the school to make a plan to address those concerns.

The school returned at a later date with a minor safety improvements plan. The neighbors, represented by their own attorney and engineer, presented their own upgraded safety improvements plan, including that a crossing guard be present during drop off and pick up hours.

Ultimately, on July 27, 2021, the Planning Board granted their final approval, incorporating many of the items that the neighbors had requested, including that a crossing guard be present during drop off and pick up hours.

The neighbors then requested that the Board establish a timeframe for which the school was required to actually install the various safety improvements required by the Board's Resolution of Approval. In response, the school counter-suggested that, as most of the proposed improvements were to be located in the public right of way (and not on their private property), instead of a timeframe for them to actually install the improvements, they wanted a stipulation that they would forward the list of conditions to the Township Committee for their approval, and if the Committee does not respond within 45 days, then they should be absolved from any requirement to install safety improvements.

Here comes the key part - Ultimately, the Board made no one happy, they did not establish any timeframe for when the school would be required to install the various safety improvements required by the Board's Resolution of Approval, while at the same time, they did not permit the school to get off the hook by simply sending their punch list to the Committee and waiting 45 days for them to not respond.

In typical land use applications, there is no building constructed yet and no Certificate of Occupancy issued yet. Therefore, the assurance that the Board has that the site improvements they require (such as utilities, landscaping, curb, sidewalk, and parking areas including off-road bus lanes) will be constructed is that the Township does not issue a Certificate of Occupancy until the Township Engineer ascertains that the conditions in the Board's Resolution have been met.

However, in this case, because the Township's Zoning Officer previously granted a Zoning Permit and a Certificate of Occupancy for the trailers, the Board did not have any assurance that the safety upgrades they required will actually get installed.

At the very least, the Board could have established a timeframe for when these improvements need to be installed, however, at the same time, being that the Certificate of Occupancy was previously granted, they would not have had any means of enforcement once their established timeframe would pass.

Either way, in October 2021 the neighbors attorney reached out to the school to see when they would be installing the required safety improvements. The neighbors also noted that since the time of the Board approval, a crossing guard had only been present occasionally but not for both drop off and pick up hours.

The schools representatives responded that "they were working earnestly on everything."

Since that time, not much work has actually taken place, and a crossing guard is still not present at all agreed upon hours.

After not hearing any response from the school, in April 2022 the neighbors reached out to the Planning Board's attorney and urged him to refer the matter to the Township's Code Enforcement Department.

In May 2022, after not hearing any response from the Planning Board's attorney, the neighbors reached out directly to the Township's Code Enforcement Department.

In response to that step, the school's attorney responded to the Township's Code Enforcement Department that they were "working diligently" on the matter and the neighbors are the ones who are maligning them!

As the school has still not commenced any work to install the required safety improvements, the neighbors have now filed a lawsuit seeking to order the Township to enforce the Board's conditions of approval in that they need to be constructed within 60 days or else the use of the trailers must be prohibited until the site plan requirements are met.

The neighbors, who are represented by Attorney Thomas J. Hirsch Esq., wrote to the Court, "the neighbors have made every attempt over the last 19 months to simply seek cooperation through the applicant and/or the Township officials to have these safety enhancements installed - that the neighbors had to present to the Board as they were not part of their application.

"The Township has already allowed a Certificate of Occupancy to be issued more than 4 years ago despite the neighbors objections, and therefore they lost their leverage of not issuing a CO for the operation of the child care center until the conditions of the Site Plan approval were met.

"The neighbors never objected to the use for a child care center but were and are concerned only that a Site Plan appropriately addressing pedestrian traffic and other safety issues that would be required of any child care center development should have been required here as well.

"If the Township is allowed to continue to take a position that apparently they can't do anything or won't do anything to ensure that the Board's conditions of approval are met, then all the safety requirements that the neighbors fought diligently for - and that the Board found to be appropriate and required - will essentially be a nugatory action as the applicant knows that no one will require them to actually install these improvements despite the many promises that they were going to do so," Mr. Hirsch concluded.

Agreeing that the matter is deemed emergent, Ocean County Superior Court Assignment Judge Francis Hodgson has signed an Order to Show Cause, which requires the Township to appear for oral arguments on Friday, May 12 and "show cause" why an enter should not be entered granting the neighbors the relief they seek.

The Township has not yet filed a written response to the lawsuit.

FAA News notes that a similar issue comes up regarding Minor Subdivision applications where the Board requires road widening, curb and sidewalk. In such applications, the property owner is simply seeking to subdivide the lots either so they can sell a portion of their property or for financial reasons, or for a future Site Plan. Either way, once they receive their Board approval they can file their Subdivision map and then sell off the new lot. As they are not actually seeking any Certificate of Occupancy on anything, the Board has little means of enforcing the conditions of their approval, unless they specifically require that the applicant place a bond prior to filing their Subdivision map.

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