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Bnos Brocha is once again being dragged to court, FAA News has learned.

Their violation: Agreeing to permit their parking lot to be utilized for events at Lake Terrace, after signing a Consent Order agreeing that their property is to be used for their own school use only.

As first reported here on FAA News, in November 2020, after learning that Bnos Brocha rented space to a linen store called Table Linen, LLC, a/k/a La Tableau, without ever having received Township approval for this outside business on school property, their industrial neighbor Clayton Associates and its landlord Sudler, represented by Attorney Rob Shea Esq., filed a lawsuit seeking to immediately shut down operation of all non-school purposes uses on the property.

Subsequently, Clayton also learned of the existence of Bnos Brocha's simcha hall which also never received Township approval, and they amended their lawsuit to include this additional non-school use as well.

Following an injunction hearing in January 2021, Ocean County Superior Court Judge Marlene Ford signed an order granting injunction restraints against Bnos Brocha from using the Simcha Hall for "any business, non-school purposes," pending the outcome of the lawsuit.

At a subsequent hearing in February 2022, Attorney Howard Lipstein Esq. explained that the simcha hall was still operating as the simcha hall is not "for business purposes," but rather, "Bnos Brocha is a community school for the Religious Jewish community, and the banquet hall is used strictly for religious events by members of the community school."

Judge Ford signed an order permitting "the banquet/catering facility... to be used only for school purposes by defendant Bnos Brocha and/or any successors, vendors, for purposes associated with the school and not for business or commercial use."

Subsequently, Clayton obtained a copy of the simcha hall use agreement which indicates that the school does rent out the hall for a fee - in contrast to the representation by their attorney at the February 17, 2022 hearing.

Clayton also obtained a copy of Bnos Brocha's school calendar which indicates that their last day of school was June 22, 2022.

Clayton's investigative team observed the simcha hall being used on 16 days after the school year ended.

In response, at the end of August, Clayton filed a Motion to Enforce Litigant's Rights, seeking to "immediately cease all activity in the simcha hall until such time as it receives all requisite and unappealable approvals for same."

As the news was previously broken here on FAA News, on September 23, 2022, just before Rosh Hashanah, Judge Ford granted the Motion and ordered Bnos Brocha to immediately cease all activity in the simcha hall until such time as it receives all requisite and unappealable approvals.

Subsequently, Bnos Brocha filed a Motion for Reconsideration. However, as previously reported here on FAA News, prior to the scheduled court hearing on the Motion for Reconsideration, Clayton Associates and Bnos Brocha signed a settlement agreement wherein Bnos Brocha acknowledged that they never have received any Township approval for their simcha hall.

The Consent Order also stipulates that Bnos Brocha has only received 2 Planning Board Resolutions of Approval, from their original 2013 Site Plan as well as from their 2018 pool application, and that Bnos Brocha will adhere to the strict wording of these resolutions which condition that they shall "resubmit this entire proposal for reapproval should there be any deviation from the terms and conditions of this resolution or the documents submitted as part of this application."

Along with signing the consent order, Clayton Associates completely withdrew their lawsuit, with the stipulation that they can immediately run back to Court to Enforce Litigant's Rights if Bnos Brocha does violate the Consent Order.

However, this relief was shortlived, as mere days after signing this Consent Order, as reported here on FAA News, Clayton Associates filed an Order to Show Cause with Temporary Restraints after Bnos Brocha started construction for an expansion of their existing parking lot.

While this motion was pending, Mr. Shea alerted the Court of a subsequent violation which occurred since the filing of the Order to Show Cause - Bnos Brocha rented out their building as a banquet hall for a Bar Mitzvah.

This motion was withdrawn after Bnos Brocha signed a Consent Order to cease all construction work on their property and to restore the work area other than the drainage improvements.

Now, a new violation of the Consent Order has become apparent - an agreement with Lake Terrace to permit usage of Bnos Brocha's parking lot to be used for overflow of events at Lake Terrace.

At the Zoning Board's recent public hearing regarding Lake Terrace's Use Variance appeal, a plan was presented to use 85 parking spaces at Bnos Brocha for overflow parking.

Specifically, Attorney Adam Pfeffer Esq. told the Board that "there is a parking arrangement between Lake Terrace and Bnos Brocha for the use of this overflow parking."

As a result of this on-record representation, Mr. Shea sent a letter to Bnos Brocha putting them on notice that the use of their property to service banquet hall at Lake Terrace would constitute a violation of their December 8, 2022 Consent Order wherein they agreed to adhere to the strict wording of the Planning Board resolutions of approval of their original 2013 Site Plan and their 2018 pool applications which condition that they shall "resubmit this entire proposal for reapproval should there be any deviation from the terms and conditions of this resolution or the documents submitted as part of this application."

Sam Zeldes of Bnos Brocha acknowledged receipt of this notification, but did not respond to the substance of the complaint.

As such, Mr. Shea has now filed a Motion to Enforce Litigants Rights.

"Plaintiff must turn to the Court for enforcement of the two prior Consent Orders.

"The Consent Orders are abundantly clear that the only uses permitted on Bnos Brocha's property are that of a school and the pool. The use of a stand-alone, private parking lot for overflow banquet hall traffic was never contemplated by either approval, nor was it included in the Consent Orders. Furthermore, neither Bnos Brocha nor Lake Terrace has represented that Bnos Brocha has properly applied for an approval allowing them to use their property in this manner, which would require its own Use Variance, as stand-alone private parking lots are not permitted in the Township's M-1 zoning district.

"Plaintiff seeks a finding that Bnos Brocha has wilfully and unjustifiably violated the prior Consent Orders. Furthermore, Plaintiff asks the Court to order that Bnos Brocha immediately terminate any agreements they have with Lakewood Terrace for the use of their property as an overflow parking lot to service a banquet hall, until such time as Bnos Brocha receives all final non-appealable approvals for any other use than a school, as per the requirements of their Consent Order," Mr. Shea wrote to the court.

Mr. Shea's proposed Order states:

ORDERED, that Bnos Brocha, Inc. (“Bnos”) is hereby found in violation of the Consent Orders dated December 8, 2022, and January 9, 2023. The Court further finds that Defendants’ actions constitute a willful and unjustifiable violation of same;

ORDERED, that Bnos is to immediately terminate any agreements which may be in place to allow the use of their property for off-site parking for events
taking place at the Lake Terrace Banquet Hall;

ORDERED that Defendants shall pay sanctions in the amount of $_________ for their repeated violations of the March 8, 2021 Order and the February 17, 2022 Order;

ORDERED, that Bnos shall pay Plaintiff’s attorney fees and legal expenses related to the filing of this motion. Plaintiff’s counsel shall submit an Affidavit of Services within 15 days of this Order. The same shall be paid within 30 days from the date in which the affidavit of services are approved by this Court.

New Jersey court rules allows a court to enter an Order to Enforce Litigants Rights commanding a disobedient party to comply with a prior order or face incarceration.

To find a violation of Litigants Rights, the court must be satisfied that the offending party's actions were willful and unjustified. The court must also consider whether a party acted willfully and in bad faith.

Once the court determines the non-compliant party was able to comply with the order and unable to show the failure was excusable, it may impose appropriate sanctions.

The court may also award attorney's fees as a sanction under a court rule which allows any litigant to invoke relief in aid of a judgement or order of a court.

The motion is returnable before Ocean County Superior Court Assignment Judge Francis Hodgson next Friday, June 9.

Bnos Brocha and the Township have not yet responded to the motion. Oral arguments will only be scheduled if requested by Bnos Brocha or the Township.

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1 comment:

001 said...

Everyone Calm down