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It appears that the Lakewood Township Planning Board is in a really great spot right now to exercise their legal right to seek dismissal of a developer's lawsuit as the developer has failed to timely file his trial briefs as previously ordered by the Court!

The only question is, will they??

The matter involves Franklin Shapiro's lawsuit which seeks to overturn the Board's denial of his Minor Subdivision application.

The application, which was presented to the Board back in September 2022, sought approval to subdivide the rear yard of 30 Independence Court into a second lot which would have a new single family house and driveway on the north side of James Street, just west of its signalized intersection with Sunset Road.

This driveway would not require any backing in or out, as they would provide an oversized driveway with a hammer-head turn-around.

The application included a proposal of a 2 foot wide right-of-way dedication to Ocean County as well as an 8 foot wide right-of-way easement to Ocean County along the project’s County Highway frontages, and that this would permit the county to widen James Street to provide for a new, right turning lane onto Sunset Road.

The application was represented by Attorney Adam Pfeffer and Engineer Brian Flannery. They testified that the application has already received favorable consideration from the Ocean County Planning Board.

As previously reported here on FAA News, the Board denied the application citing safety concerns with the proposed new driveway directly onto James Street, with left turns permitted into and off from James Street, just west of the busy signalized intersection.

Several neighbors spoke up in opposition to the application, citing drainage concerns on their own property due to the loss of trees on the applicant's property, and other concerns.

The application was originally submitted with one single existing non-conformity which the developer proposed to retain with the Minor Subdivision.

The existing tract which is to remain contains a two-story single-family frame dwelling with a second story deck. No variances were requested for the proposed new home, however, to make room for the Subdivision, this lot proposed a Minimum Rear Yard Setback Variance of 7 feet for the second-floor deck, where 20 feet is required.

Mr. Flannery testified that this Minimum Rear Yard Setback Variance is an existing non-conformity because this house was built before the Township Committee amended the ordinances to require all decks to be built outside the setbacks.

The existing home also required a parking variance as the house now requires 4 off-street parking spaces and the existing driveway only contains 2 off- street parking spaces. This is also an existing non-conformity as this house was built prior to enactment of the State's Residential Site Improvements Standards which now require additional parking for new residential homes.

Seeing as they were about to get denied, Mr. Flannery agreed to eliminate these two existing non-conformities.

In response to the Board's safety concerns regarding the proposed James Street driveway, the applicant's professionals attempted to request that the Board table the application so they could redraw the plans to eliminate the driveway from James Street and instead provide a driveway easement through the existing driveway on Independence Court.

The Board denied the request to table the application, and instead voted to deny the application. Attorney Adam Pfeffer tried to interject that "this is a fully conforming application which the Board does not have the authority to deny." Board Member Eli Rennert retorted that there was an existing setback variance which the application sought to affirm and the Board certainly does have the legal authority to deny affirmation of a variance. Board Chairman Moshe Neiman noted that, as previously reported here on FAA News, the Board had previously denied a "fully conforming" application on Fourteenth Street, citing safety concerns, and here as well there certainly is a safety concern.

Subsequently, on October 25, 2022, the Board memorialized their Resolution of Denial which states:

"After hearing the testimony provided by the applicant and the applicant’s experts and after hearing comment from the general public, and after reviewing the application, maps and exhibits as provided, the board discussed the merits of this application and so finds that:

i. While the applicant does not require any variances, 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 part of the Board. The Board ultimately rejected the application on the basis of significant traffic concerns in light of the shape of the lots at issue and the street and traffic patterns in the nearby area. The Board found that an approval of this application would have significant detrimental effects on the safety of the neighborhood. The Board further found that the applicant’s proposal does not further the purposes of zoning pursuant to N.J.S. 40:55D-2 in that the applicant’s proposal is not the best planning alternative, and the proposed development would not secure safety from fire, flood, panic, and other natural and man-made disasters.

ii. Accordingly, the Board hereby denies the applicant’s request for minor subdivision

As previously reported here on FAA News, in January 2023, Attorney Adam Pfeffer Esq. representing Mr. Shapiro filed a lawsuit seeking to overturn this denial.

The Complaint in Lieu of Prerogative Writs, filed in Ocean County Superior Court, charges that by removing the request for variance relief for the existing deck, "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 engineer further testified that the applicant would provide a driveway easement across the existing home lot and provide access to Independence. Notwithstanding the fact that Plaintiff’s application was “as-right” the Planning Board adopted a Resolution of Denial."

The lawsuit alleges that once the developer made the application"by-right," the Planning Board did not have the authority to deny the application pursuant to PRB Enterprises, Inc. v. South Brunswick Planning Board, 105, N.J. 1 (1987), and its progeny, and accordingly "the Planning Board has acted to the detriment of the Plaintiff by denying their application for minor subdivision approval [and] the Resolution of Denial of the Planning Board is arbitrary, unreasonable and capricious."

The lawsuit seeks a Court Order declaring the Resolution of Denial to be arbitrary, unreasonable and capricious, and void as a matter of law; compelling the Planning Board to adopt a positive
Resolution of Approval to approve Plaintiff’s Application, awarding Plaintiff’s attorneys ‘fees and costs of suit; and for such other and further relief as may be just.

At a pretrial status conference held on February 16, Ocean County Assignment Judge Francis Hodgson set the trial date for May 18. Additionally, Judge Hodgson ordered that the Plaintiff file trial briefs by April 18, that the Defendant file trial briefs by May 5, and that the Plaintiff file a reply brief by May 12.

It is now over 2 weeks since the Court-ordered deadline for submission of the Plaintiff's trial briefs, and no briefs have yet been filed. The Plaintiff's attorney has not requested any adjournment from the court.

The New Jersey Court rules (1:2-4) provide that for failure to comply with the requirements for filing briefs and for failure to submit a required brief, the court may dismiss the complaint.

At this time, as the Plaintiff has not filed any briefs nor sought an adjournment, it appears that the Planning Board is well within their legal rights to file a Motion for Dismissal of the entire lawsuit. That would ensure that their denial of the Minor Subdivision stays intact - something that may not happen if the developer is permitted to take his case to trial.

All eyes are on the Planning Board now. Time will tell if they will stick up for the taxpayers and their rights.

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1 comment:

Anonymous said...

Someone should immediately point this out to Chaiman Moshe Neiman and Vice-Chair Eli Rennert. This must be thrown out immediately!