LAKEWOOD DEVELOPERS USE "JEWISH CARD" IN ATTEMPT TO SEEK LEGAL FEES FROM JACKSON ZONING BOARD

Lakewood developers Denton Holdings, LLC are using their Jewish card in an attempt to seek monetary damages from Jackson Township following their winning litigation overturning the Jackson Township Zoning Board's denial of their application, FAA News has learned.

Denton Lane is located in the Township’s RG-2 Regional Growth Zone which permits detached, single-family developments in this zone as a conditional use, subject to certain requirements. The Township's ordinances for this zoning district do not regulate lot coverage or building coverage on single-family lots within this zoning district.

Denton Holdings (the Registered Agent on file for this company is Yisrael Zajac) intended to develop 21 single-family lot subdivision, one affordable housing lot with four units, and one stormwater management basin lot.

In 2019, they submitted an application to the Township's Zoning Board for a conditional use variance as their application did not meet all of the bulk requirements for the conditional use and sought deviations for lot depth, lot width and lot frontage. This application was bifurcated, meaning that they were first seeking use variance approval which would be followed by, and conditioned upon, a separate subdivision approval.

At their public hearings for their Conditional Use Variance there was discussion between the Board and Denton's planner, Ian Borden, PP, and attorney, Adam Pfeffer, Esq., regarding the design of the homes to be constructed.

Mr. Borden told the Board that he did not yet design the subdivision and he did not yet discuss with the developer the specific sizes of the homes, however "a typical subdivision would include two story houses with a building area of 2,500 to 3,000 square feet to accommodate 4 to 5 bedrooms."

Mr. Pfeffer expressly stipulated that "for all of those things we would come back before the site plan so the Board would have an opportunity to see and review all those designs."

On October 16, 2019 the Board granted the conditional use variance. The Board's Resolution of Approval memorializes the grant of the use variance to permit deviations in lot depth, lot width and lot frontage for an anticipated major subdivision and site plan for the Property. The resolution does not stipulate any express limitation that those houses would be no larger than 3,000 square feet with five bedrooms.

Subsequently, in late 2020, the developer returned to the Board with a Subdivision application. That application proposed homes of up to 5,000 sq feet to accommodate an average of 6 bedrooms.

The Board insisted that this design was larger than what was represented to them during the Use Variance hearing, and ultimately they denied the Subdivision application.

On March 5, 2021, represented by Attorney Matthew Fiorovanti Esq., Denton Holdings filed a lawsuit seeking to overturn the Board's denial.

The 5 count Complaint in Lieu of Prerogative Writs included; 

• Arbitrary, Capricious and Unreasonable Denial of Subdivision Application - The Board’s consideration of the general purposes of zoning and the public welfare, rather than a consideration of whether the subdivision application satisfied the subdivision and zoning ordinances, was erroneous. 

A denial of a preliminary and final subdivision application must be based only on specific failures to meet stated subdivision or zoning ordinance standards, and cannot be based on a consideration of the general purposes of zoning and the public welfare independent of the standards enumerated in the ordinance.

The Board invoked the incorrect standard for governing the validity of a preliminary and final major subdivision. 

The Board’s approval of the application for preliminary and final subdivision, as memorialized in the Resolution, was therefore arbitrary, capricious and unreasonable, and contrary to law.

• Violation of the Open Public Meeting Act - The Board improperly went into executive session on December 2, 2020, to discuss the substance of Plaintiff’s pending application for preliminary and final subdivision. The Board’s reliance on “pending or anticipated litigation” as justification for going into executive session on December 2, 2020, was misplaced, as no litigation was threatened or even mentioned by Plaintiff prior to that point in time.

Any discussion regarding the Board’s consideration of Plaintiff’s pending application for preliminary and final major subdivision was required to be done in an open meeting, in view of the public, and not in any executive session. 

The Board’s executive session on December 2, 2020 was therefore improper and in violation of the provisions of OPMA.

• Deprivation of Due Process and of Equal Protection of the Law, Temporary Taking of Property Without Compensation - Defendants’ acts have deprived Plaintiff of the full value of its property for a period of time running from the denial through such time as the denial may be rectified and the project resume. No compensation for the taking has been offered or made.

• Violation of Conditions of Court Orders Affirming Compliance and Granting Repose and Immunity From Builder’s Remedy Litigation

• Violation of RLUIPA - At the time of the use variance and subdivision application, Defendants were aware that Orthodox Jewish families are typically large, and typically reside in homes that can accommodate such large families through a larger number of bedrooms. The Board denied the subdivision application because it did not wish to allow large families that would result in Orthodox Jewish families moving into the Township. As such, the Board premised its denial of the subdivision application on Plaintiff’s failure to comply with the non-existent representation regarding the maximum size of the homes.

The Board’s denial of the subdivision application constitute the imposition or implementation of a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution in violation of RLUIPA.

The Board’s denial of the subdivision application, premised on the Board’s desire to restrict the size of the homes to 2,500 to 3,000 square feet with a maximum of 5 bedrooms, discriminates against Orthodox families, the likely residents of the homes, on the basis of religion or religious denomination in violation of RLUIPA.

The lawsuit sought to reverse the Board's denial of their application, the entry of judgment vacating the court’s Judgment of Compliance and Repose entered in favor of the Township regarding its affordable housing obligations and authorizing the filing of a builder’s remedy litigation against the Township, along with an award of attorneys’ fees and costs.

On June 11, 2021, Judge Marlene Ford dismissed without prejudice Count III, Deprivation of Due Process and of Equal Protection of the Law, Temporary Taking of Property Without Compensation.

Judge Ford then split up the RLUIPA claims from the remaining claims, set discovery deadlines for the RLUIPA claims, and held a trial only on the remaining claims.

At the "remaining claims" trial, Judge Ford vacated the Board's denial, finding that the Township's zoning ordinances do not restrict the number of bedrooms or square footage of the size of single family homes in this zone, therefore the Board's condition on this aspect was inappropriate.

Judge Ford tossed out the OPMA violations claims because the Board argued that they discussed the application in closed session simply because one of the Board members suggested that he may have needed to recuse himself from the application.

Jackson Zoning Board subsequently filed a Motion for Reconsideration. Judge Ford denied the motion.

The RLUIPA claims - for which Denton seeks financial relief, remain pending as Jackson Township officials continue to delay discovery in the matter.

On April 4, 2023, Denton Holdings filed a Motion for Leave to Amend their Complaint, which seeks to "supplement their legal theories for the recovery of such monetary relief" - by playing the Jewish card.

Mr. Fiorovanti wrote:

Plaintiff, whose principals are Orthodox Jews, sought to subdivide a parcel in the Township in order to construct a housing development on 21 single-family lots plus 1 multi-family affordable lot. In furtherance of this plan, Plaintiff submitted an application for subdivision approval to the Board, as certain proposed lots required minor bulk variance relief. 

Consistent with its well-established pattern of anti-Semitic decision-making, the Board unlawfully denied the application after Plaintiff refused to agree to limit the size of the homes to a maximum of 5 bedrooms. 

The reason for the Board’s insistence on such limitation—which does not exist under any Township ordinance—was obvious: the Board, aware that Orthodox Jewish families are typically large and typically reside in homes that can accommodate such large families through a larger number of bedrooms, wished to prevent Orthodox Jewish families from moving into the Township. 

Given that there is no objective requirement relating to bedroom numbers, no other conclusion can be drawn. Indeed, this is not the first instance in which Defendants have been accused of being motivated by religious and racial animus towards Orthodox Jews in connection with land use applications. 

Following the institution of this action, the court entered partial final judgment in favor of Plaintiff, concluding that the Board’s denial of the subdivision application was improper. Yet while Plaintiff has finally obtained subdivision approval, Plaintiff has suffered substantial damages as a result of the delay which has resulted from the Board’s wrongful denial. Given the amount of time that has passed since the initial wrongful denial of the application, Plaintiff lost the ability to obtain needed sewer capacity. Plaintiff is now forced to attempt to purchase such capacity when it would have otherwise been available had its subdivision application been properly granted.

Moreover, the interest rates have increased significantly, and the overall economic conditions have been much more volatile, which has caused Plaintiff to incur substantial economic damages.

Mr. Fiorovanti sought Court approval to amend the complaint to clarify Denton's legal theories of its claim for monetary damages.

On April 28, 2023, after receiving no Opposition from the Township, Judge Hodgson granted the motion.

The now filed amended complaint highlights front and center that "upon information and belief, Defendants were aware that it was likely that Orthodox Jews would be the purchasers of the homes in the proposed development. Indeed, Orthodox Jews have been purchasing homes in the Township in growing numbers in recent years. It is estimated that there are approximately 3,000 Orthodox Jewish families and 15,000 residents residing in the Township at the present time.

"Numerous lawsuits have been brought against Defendants arising from Defendants’ misconduct in delaying and thwarting land use applications for the development of homes to be purchased by Orthodox Jews. Defendants understood that Orthodox Jews would be the likely purchasers of the homes in Plaintiff’s proposed development, and consistent with their prior misconduct in delaying and thwarting similar land use applications, took steps to delay and thwart Plaintiff’s subdivision through the imposition of a legally non-existent and discriminatory maximum-bedroom limit."

The 8 count amended complaint alleges Violation of Conditions of Court Orders Affirming Compliance and Granting Repose and Immunity From Builder’s Remedy Litigation; Violation of RLUIPA - The Board denied the subdivision application because it did not wish to allow large families that would result in Orthodox Jewish families moving into the Township. A such, the Board premised its denial of the subdivision application on Plaintiff’s failure to comply with the non-existent representation regarding the maximum size of the homes. The Board’s denial of the subdivision application constitutes the imposition or implementation of a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution in violation of RLUIPA; Violation of Fair Housing Act; Violation of Equal Protection Clause – Fourteenth Amendment to the United States Constitution; Violation of Substantive Due Process – Fourteenth Amendment to the United States Constitution; Violation of Equal Protection Clause – New Jersey Civil Rights Act; Violation of Substantive Due Process – New Jersey Civil Rights Act; and Violation of the New Jersey Law Against Discrimination.

The amended complaint demand judgment against the Zoning Board awarding compensatory and consequential damages in an amount to be determined at trial; Treble damages; Punitive damages; Attorneys’ fees; Vacating the Court’s Judgment of Compliance and Repose; Authorizing the filing of a builder’s remedy litigation against the Township; Costs of suit; and For such other relief as may be just and equitable.

Attorney Gregory McGuckin Esq. is representing Jackson Township. Attorney Ryan Murphy Esq. is representing the Zoning Board.

Judge Hodgson has just scheduled a Case Management Conference for July 10. The parties are to provide to the Court a consent order regarding the scheduling establishing discovery dates and deadlines prior to the Case Management Conference.

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