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Ocean County Superior Court Assignment Judge Francis Hodgson on Monday scheduled a trial date on a lawsuit which seeks to overturn the Lakewood Planning Board's approval of Yeshiva Birchas Chaim's application to expand their current Mesivta campus with a Beis Medrash and dormitory building for approximately 85 bochurim.

This lawsuit was filed by a neighboring property owner following Judge Ford's decision overturning Yeshiva Toras Chaim's dormitory expansion approval, on the basis that the Township Committee has not granted the Planning Board jurisdiction to approve dormitories (besides for in Planned Educational Campuses, which is only available to schools that offer a Graduate Degree).

The lawsuit now also alleges that the Board's approval must be vacated because the developers failed to provide the neighbors with legal notice that their application included a dormitory.

Yeshiva Birchas Chaim is located at 1111 Vine Avenue.

The entire lot contains 80,000 sq feet, or 1.837 acres and currently contains a 2 story Mesivta building.

As previously reported here on FAA News, back in November 2022, Lakewood's Planning Board granted Site Plan approval for the Yeshiva to construct a 7,000 sq feet two-story building addition with a basement.

The yeshiva's legal notice failed to mention any proposed dormitory. However, per the architectural plans, the first floor and basement will contain a total of 19 dormitory rooms, and a rabbi’s apartment with a dining room, kitchen, and bedroom. The second floor will contain 2 classrooms, 2 offices, a library, and a Beis Medrash.

This new building expansion application is in addition to the yeshiva's small expansion of their Beis Medrash which was previously approved and is currently under construction.

The Yeshiva building is located on the east side of Vine Avenue between the right of ways of Surf and Mermaid Avenues. Vine Avenue is paved with curb and sidewalk. When the yeshiva building was originally approved, they received a road waiver from the Planning Board so they were excused from paving Surf and Mermaid Avenue's past their driveway entrances which is approximately 100 feet away from their intersections with Vine Avenue.

With their new dormitory application, the Yeshiva sought to retain this road waiver.

At two hearings which were held on October 25 and November 15, 2022, the Board focused heavily on this road waiver request.

The Yeshiva was represented by Attorney Adam Pfeffer Esq., Glenn Lines, professional engineer and professional planner, and Abe Auerbach of Regency Development.

Board Member Eli Rennert who was Acting Chairman as Mr. Neiman was absent from the meeting, emphasized that the Township's ordinances require property owners to pave all frontages along their property, and this should be required here as there are additional property owners in the rear of this yeshiva building and if the Yeshiva doesn't pave these roads and the neighbors later want to improve their properties, they will be forced to pave the roads along the yeshiva's frontages which is legally the yeshiva's responsibility to do now.

Mr. Auerbach gave major pushback, arguing "Lakewood doesn't need more roads. Why are you asking a school to build a street that goes no where?"

Mr. Lines added, "if we pave these roads now and a neighbor wants to improve their property in the future, they will actually need to spend more money ripping up our pavement in order to install utilities and drainage."

Board Member Yair Stern shot back, "now you’re adding a dormitory, and we’re saying we’d like sidewalk and street. Balance off the positives and negatives. I think it would be appropriate to improve the street to the end of your building."

Board Member Bruce Stern suggested that they compromise by conditioning their approval that if the neighbors ever do improve their properties then this yeshiva will need to pave the roads at that time.

Board Secretary Ally Morris explained that it is not possible for the Township to monitor as once they obtain their building permit and Certificate of Occupancy, the Township has no more holding over them and no way to require anything.

Ms. Morris suggested that the Board not grant the road waiver now, and condition the approval on the Yeshiva getting a road vacation from the Township Committee so the rights-of-way will be extinguished and then they will no longer require a road waiver from the Planning Board.

Mr. Auerbach offered to compromise by paving an additional 45 feet past where their pavement currently ends.

Mr. Yair Stern offered a motion to approve, with the condition that they improve 100 feet of Surf Avenue. Mr. Rennert seconded the motion.

This motion failed as only Mr. Rennert and Mr. Yair Stern voted for it. Mr. Meyer and Mr. Bruce Stern voted against it. Mr. Pichey abstained from voting.

At that point, Mr. Meyer offered a new motion to approve, the application with no requirements to pave either road, but with a requirement to install a sidewalk along their frontage of Surf Avenue and to connect it to their existing sidewalk. Mr. Bruce Stern seconded the motion.

Mr. Meyer, Mr. Bruce Stern, and Mr. Pichey voted for the motion. Mr. Rennert and Mr. Yair Stern voted against the motion (as they wanted the Yeshiva to pave the roads).

The motion passed.

The application also required numerous bulk variances including a 5 foot setback to Surf Avenue where 70 feet is required.

At the initial hearing on October 25th, board members weighed in that the 5 foot setback is just way too close, especially as the area in back of the school could be developed by their property owners and then this school building will be extremely close to their road.

Mr. Lines responded that "likely no neighboring property owners would pave Surf Avenue due to the detention basin on the other side."

Board members said they still wanted to see the plans revised.

At the second hearing, the Yeshiva returned with a revised plan that provided a 15 foot setback from Surf Avenue.

On December 20, the Board adopted a Resolution of Approval finding that the waivers and variances could be granted as "the benefits of the deviation would substantially outweigh any detriment," and that the relief can be granted without any substantial detriment to the zone plan or zoning ordinance.

Subsequently, as the news was first broken here on FAA News, Ocean County Superior Court Judge Marlene Ford overturned Lakewood Township Planning Board's approval of a dormitory expansion for Yeshiva Toras Chaim, located at 999 Ridge Avenue, finding that the Township Committee has not deemed dormitories to be a permitted use in the residential zoning district, and therefore the Board lacked jurisdiction to approve a dormitory.

Following this decision, as previously reported here on FAA News, Mark Properties, represented by Attorney Edward Liston Esq. filed a lawsuit seeking to overturn the Board's approval of Yeshiva Birchas Chaim's application.

Mark Properties owns property behind the Yeshiva, along the roads which the Board granted the Yeshiva a road waiver.

The Complaint in Lieu of Prerogative Writs, filed in Ocean County Superior Court charges that "the action of the Board, in approving the application, was arbitrary, capricious, unreasonable ultra vires, beyond the Board's jurisdiction due to the fact that the proposed project is not a permitted use in the zoning district, and was against the great weight of the evidence presented to the Board at the hearings held on the application."

The lawsuit seeks to overturn and deny the application and to recoup legal fees and filing costs.

In a pre-trial memorandum submitted to the court just days ago, Mr. Liston added that "the public notice was deficient in that it lacked the specificity required under Perlmart vs. Lacey Township. Specifically, the notice failed to mention that the building proposed was to be used as a dormitory, which is not a permitted use in the subject zones and which deficiency also deprives the Board of jurisdiction to hear the matter."

The New Jersey Municipal Land Use Law (NJSA 40:55-D11) requires applicants to provide notice to property owners within 200 feet of the application site, and requires the notice to "state the date, time and place of the hearing, [and] the nature of the matters to be considered."

The New Jersey Appellate Division, in Perlmart vs. Lacey Twp Planning Board, found that the purpose of the notice is to ensure the public is properly apprised "so they may make an informed determination as to whether they should participate in the hearing or at least look more closely at the plans on file," and this purpose can not be accomplished when not all the proposed uses (including accessory uses) are listed in the notice.

At a Pretrial management conference held on Monday, Judge Hodgson scheduled the trial date on the matter for September 7, 2023. The first trial brief will be due July 7, 2023.

Yeshiva Birchas Chaim is represented by Attorney Adam Pfeffer Esq. The Planning Board is represented by Attorney Jillian McLeer Esq.

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

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