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Ocean County Superior Court Assignment Judge Francis Hodgson has just overturned the Lakewood Planning Board's denial of an application on East 8th Street because Developer Joseph Bitton 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.

Judge Hodgson explained that despite the neighbors concerns for fire trucks safety on the block, he is forced to overturn this denial because 1) the Township Committee never adopted an Ordinance requiring full-sized cul-de-sac bulbs on this road and, 2) the Board of Fire Commissioners approved this application even without a full-sized cul-de-sac bulb.

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 seeked 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. Additionally, despite that this is the Multi-family zoning district, there is no Township Ordinance specifically requiring a full-sized cul-de-sac bulb in this area.

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 therefore the denial should be overturned.

In subsequent Trial Briefs, Mr. Pfeffer elaborated:

"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.

"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’ Engineer 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.

"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 plaintiff therefore 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 Subdivision 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."

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

Ms. McLeer argued that the Board did not act in an arbitrary, capricious, or unreasonable manner in denying the application based on traffic, parking, and safety concerns because 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.

In this case, 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.

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."

Therefore, 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 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.

At a trial held in Superior Court on Thursday, Judge Hodgson said he was forced to disagree.

Judge Hodgson noted that despite that the Township Committee has designated this block as part of the R-M Multi-family housing district, there is no Township Ordinance which specifically requires a full-sized cul-de-sac bulb in this area.

Judge Hodgson additionally stated that absent a specific Township Ordinance, the New Jersey Residential Site Improvement Standards (RSIS) would govern, and RSIS guidelines clearly state that the Planning Board can only require a full-sized cul-de-sac bulb if the Board of Fire Commissioners states that one is necessary so fire trucks can properly turn around. In this case, despite that there already have been multiple big fires on the block, the Board of Fire Commissioners had no concerns with the application as presented and they did not require a full-sized cul-de-sac bulb, and therefore the Planning Board lacked jurisdiction to require it.

The Court-order vacates and reverses the Board's denial and returns the matter back to the Board for the entry of a Resolution of Approval.

Additionally, the Court-order states that the Plaintiff will comply with all standards and requirements without any design waivers, unless agreed to by the parties during compliance meetings.

This final provision means that we may not even get a hammer-head turnaround as that required a design waiver....

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

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Anonymous said...

The applicant may now sue the planning board for his legal expenses, as it was a fully conforming application.

These residents had an opportunity a few years back to force compliant with the original plan, which required "approval from the Fire Chief", which they did not receive.

The residents did not want to put up the few dollars for legal fees, so now they are......

Shlomo Goldstein said...

In 2014 the then-Board of Fire Commissioners said that we need a turnaround, but curiously, the new Board no longer thinks we need a turnaround, despite that now there are even more houses on the block!

That is really odd.

Larry Loigman needs to trump 'em all.

We need a Board (and chief) that can actually stick up for us - the residents, voters, and taxpayers.

Just my Two Cents said...

@Anon 4:47pm

You are so correct!

However, it is worse than that.

On 6th Street the neighbors recently successfully upheld the Board's Resolution of Approval (with the conditions that the neighbors requested) because the Resolution was written correctly and the Board staff acknowledged that the child care center did not actually yet comply with the Board's conditions.

However, here on East 8th Street, while the Board's Resolution of Approval does accurately require a turnaround, Ally's subsequent letter of Compliance Review indicates that they are "good to go" - despite that they did not actually comply with the provision of the turnaround.

Therefore, thanks to Ally's mess up, suing to uphold the Board's Resolution of Approval would likely be more complex.

moish said...

At this point it was a conforming application, with the court having to grant the approval. the clowns on the planning board just do what is best for them.

Next will be the one in the "exclusive neighborhood".