Finally! Liberty, justice, and open space for all!

Due to heavy pressure from numerous Chestnut Street residents, the Lakewood Planning Board recently took a huge step towards ensuring that many future developments will include appropriate shuls and playgrounds.

The Township Open Space Ordinance (18-808) states:

Not less than 5% of land area of every residential major subdivision or residential site plan consisting of 25 or more units shall be preserved as common open space or shall be dedicated to active recreational or community facilities...

The required open space area shall be contiguous, free of environmental constraints such as flood plains, wetlands, bodies of water, storm water drainage ways and basins (exclusive of underground facilities), or steep slopes. This land shall be utilized for passive or active recreation, community facilities or left as undisturbed open space and/or wildlife habitat....

In essence, the Township requires developers to provide "open space" in land use applications of 25 or more units. Typically, the Planning Board defines this "open space" requirement to mean a shul and playground.

However, there are two glaring issues with this Ordinance, which - up until now - have been used as loopholes by developers, causing much frustration for the Planning Board.

One is that the Ordinance specifically includes a "25-29 units clause" which states as follows:

For any project consisting of less than or equal to 30 dwelling units, it is recognized as impractical that recreational facilities be constructed and the payment in-lieu-of-construction is encouraged. For any project over 30 dwelling units the above recreation standards shall apply.... The maximum contribution per dwelling unit shall not be more than $500.

The cash bequest shall be used exclusively for park and recreation purposes and shall be placed in the current budget line item designated "parks and playgrounds, other expenses." Lakewood Township reserves the right to use said funds for the above referenced purposes anywhere within the Township of Lakewood.

Essentially, what this means is that for land use applications of 25-29 units, the developer can legally drop $500 per unit into some Township bank account in lieu of building an actual shul and playground.

Curiously, the ordinance does not even bother to shy away from admitting that these funds can be used for "parks and playgrounds, other expenses" for anywhere in the Township and not specifically for upgrades to the closest Township owned park!

When recently reviewing a Site Plan application for 28 homes on a new cul-de-sac off Chestnut Street, the Planning Board noted that the application did not provide any open space at all, and certainly no playground, despite that with proposed basement apartments there will be 56 families living on this block.

Brian Flannery, the developer's engineer insisted that the Township's ordinances simply do not require developers to provide a playground unless they are seeking approval for 30 homes. Mr. Flannery asserted that "this is the way that the Planning Board has interpreted the Township's Open Space ordinance since 1979."

Board Member David Helmreich retorted that at one point the Township Committee adopted an Ordinance legalizing basement apartments, yet, incredibly, at the same time, the Township Committee did not increase the open space required for new developments.

"The Township's Ordinances were designed to establish quality of life. However, legalizing basement apartments without increasing the open space requirement creates a situation where it is impossible to live. That is simply not right," Helmreich stated.

Board Member Bruce Stern agreed, saying "all this developer wants is for us to consider maximizing density without providing any open space."

Mr. Helmreich shot back at Mr. Flannery, "you are asking us to interpret this as 28 "units," however, common sense says that this is actually 56 "families" and should require appropriate open space. There are so many people being put here, it simply defies logic to interpret it as only 28 "units."

Board Member Bruce Stern echoed his words, saying "we have to interpret these ambiguous ordinances logically. If different families with different last names live in the basements legally, then this is an application for 56 families."

At that point, the Board asked their professionals to take a deep dive into the Township's zoning rule book and investigate if the book provides any definition for a "unit."

Board Engineer Terry Vogt came to the rescue by saying that the Township's ordinance book defines "units, dwellings" as "one housekeeping unit equals one unit," and the ordinance book further defines "housekeeping unit" as "one or more persons living together in one dwelling unit on a non-seasonal basis and sharing living, sleeping, cooking and sanitary facilities on a non-profit basis."

Board Attorney John Jackson Esq. further interpreted that this means that if there are different families and each one can lock their own door and keep everyone else out then they are considered a "unit."

Board Chairman Moshe Neiman said, "so a basement apartment is a separate unit."

Mr. Jackson agreed "unequivocally!"

Inter Alia, a "unit" now means a "family," and therefore an application for 28 homes with separate basement apartments will be considered 56 units and requires appropriate open space!

The Board used this new interpretation as a basis to deny this application.

The Board will also happily use this new interpretation to ensure that more future developments include adequate shuls and playgrounds.

Chairman Neiman quoted Mr. Banas, a previous chairman of the Board, who used to say "just because you made a mistake once doesn’t mean you have to make one again. In our mind, this is a 56 unit project."

Mr. Flannery attempted to interject that "we aren't asking here for basements, we are simply seeking a subdivision for a number of lots." (Upon which they will later seek building permits to construct houses with basement apartments) Mr. Neiman shot back, "are you willing to stipulate that there will be no basements, because if not then we need to take into consideration that the ordinance does permit basement apartments here!"

Readers are reminded that this 5% Open Space requirement does not count towards the number of houses being built at any one time, but rather towards the number of houses in a particular land use application that comes before the Planning Board.

(As reported here on FAA News, the Board has previously highlighted frustrations with developers manipulating the system by presenting numerous piecemeal applications to sneak away from providing open space.

Board Attorney John Jackson Esq. noted at the time that, depending on how one "structures things," there is a difference between tax evasion and tax "avoidance."

As previously reported here on FAA News, back in December 2022, after a developer submitted a number of "creeping applications" with no amenities, at the very least the Board imposed a stipulation that the developer is required to construct a cul-de-sac bulb so that school buses would be able to service the many residents living in this area.)

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Anonymous said...

It's too bad they didn't figure this out earlier for so many other developments.

Anonymous said...

Kudos to the board that stood for safety, quality of life and common sense.

As for the brazen developer, no doubt he will be right back "undercover".

Long overdue that the boards confront the greed. Creeping applications. Sleazy maneuvering. Shoddy engineering. Double-speak planning experts.

Unknown said...

What if you aren’t Jewish? Why do all developments have should? Can you build a house of worship for other religions? If not that is discriminatory!!!

Anonymous said...

Anon 9:12,

Of course you can. Just make sure you'll have enough membership to maintain it.s

Anonymous said...

It's a community center. If they want to use it as a shul, so be it.