Ocean County Superior Court Assignment Judge Francis Hodgson just threw Attorney Rob Shea Esq. a curve ball - exactly the ammunition he needs to create havoc at Lake Terrace's next Zoning Board public hearing.
The matter officially involves his lawsuit against Bnos Brocha, but affects Lake Terrace as well.
Lake Terrace has been embattled in litigation since November 2020 when their industrial neighbor Clayton Associates, and their property owner Sudler, represented by Attorney Rob Shea Esq., filed a lawsuit against them for not having ever received Township Zoning Board approval for a banquet hall.
In response, Lake Terrace submitted an application to Lakewood's Zoning Board seeking Use Variance approval to legalize their existing operations. (Read more on their ongoing legal saga here on FAA News. Read more regarding their Zoning Board hearings here on FAA News.)
Bnos Brocha has been embattled in similar litigation with Sudler since November 2020. (Read more regarding their ongoing legal saga here on FAA News.)
Ultimately, as the news was previously broken here on FAA News, on September 23, 2022, just before Rosh Hashanah, Judge Ford formally ordered Bnos Brocha to immediately cease all activity in the simcha hall until such time as it receives all requisite and unappealable approvals.
Subsequently, Bnos Brocha filed a Motion for Reconsideration. However, as previously reported here on FAA News, prior to the scheduled court hearing on the Motion for Reconsideration, Clayton Associates and Bnos Brocha signed a settlement agreement wherein Bnos Brocha acknowledged that they never have received any Township approval for their simcha hall.
The Consent Order also stipulates that Bnos Brocha has only received 2 Planning Board Resolutions of Approval, from their original 2013 Site Plan as well as from their 2018 pool application, and that Bnos Brocha will adhere to the strict wording of these resolutions which condition that they shall "resubmit this entire proposal for reapproval should there be any deviation from the terms and conditions of this resolution or the documents submitted as part of this application."
Along with signing the consent order, Clayton Associates completely withdrew their lawsuit, with the stipulation that they can immediately run back to Court to Enforce Litigant's Rights if Bnos Brocha does violate the Consent Order.
As previously reported here on FAA News, Bnos Brocha is now being dragged back to court as Sudler is alleging a new violation of the Consent Order has become apparent - an agreement with Lake Terrace to permit usage of Bnos Brocha's parking lot to be used for overflow of events at Lake Terrace.
At the Zoning Board's recent public hearing regarding Lake Terrace's Use Variance appeal, a plan was presented to use 85 parking spaces at Bnos Brocha for overflow parking.
Specifically, Attorney Adam Pfeffer Esq. told the Board that "there is a parking arrangement between Lake Terrace and Bnos Brocha for the use of this overflow parking."
As a result of this on-record representation, Mr. Shea sent a letter to Bnos Brocha putting them on notice that the use of their property to service banquet hall at Lake Terrace would constitute a violation of their December 8, 2022 Consent Order wherein they agreed to adhere to the strict wording of the Planning Board resolutions of approval of their original 2013 Site Plan and their 2018 pool applications which condition that they shall "resubmit this entire proposal for reapproval should there be any deviation from the terms and conditions of this resolution or the documents submitted as part of this application."
Sam Zeldes of Bnos Brocha acknowledged receipt of this notification, but did not respond to the substance of the complaint.
As such, Mr. Shea has now filed a Motion to Enforce Litigants Rights.
"The Consent Orders are abundantly clear that the only uses permitted on Bnos Brocha's property are that of a school and the pool. The use of a stand-alone, private parking lot for overflow banquet hall traffic was never contemplated by either approval, nor was it included in the Consent Orders. Furthermore, neither Bnos Brocha nor Lake Terrace has represented that Bnos Brocha has properly applied for an approval allowing them to use their property in this manner, which would require its own Use Variance, as stand-alone private parking lots are not permitted in the Township's M-1 zoning district.
"Plaintiff seeks a finding that Bnos Brocha has wilfully and unjustifiably violated the prior Consent Orders. Furthermore, Plaintiff asks the Court to order that Bnos Brocha immediately terminate any agreements they have with Lakewood Terrace for the use of their property as an overflow parking lot to service a banquet hall, until such time as Bnos Brocha receives all final non-appealable approvals for any other use than a school, as per the requirements of their Consent Order," Mr. Shea wrote to the court.
New Jersey court rules allows a court to enter an Order to Enforce Litigants Rights commanding a disobedient party to comply with a prior order or face incarceration.
To find a violation of Litigants Rights, the court must be satisfied that the offending party's actions were willful and unjustified. The court must also consider whether a party acted willfully and in bad faith.
Once the court determines the non-compliant party was able to comply with the order and unable to show the failure was excusable, it may impose appropriate sanctions.
The court may also award attorney's fees as a sanction under a court rule which allows any litigant to invoke relief in aid of a judgement or order of a court.
As previously reported here on FAA News, Attorney Lawrence Shapiro Esq. representing Bnos Brocha has responded with Opposition, mainly arguing that; 1) Plaintiff's allegations are speculative as there is currently no Lake Terrace parking permitted in Bnos Brocha's parking lot, and 2) an application to permit such parking is currently pending before the Zoning Board in its review of Lake Terrace's Use Variance application, therefore, a) if approved by the Board then there will be no violation of the Consent Order, and b) because the matter is properly before the Zoning Board, the court can not take jurisdiction of the matter as well.
Mr. Shapiro concluded that the December 8, 2022 Consent Order between Bnos and Plaintiff specifically notes that the property cannot be used for purposes other than those approved by the resolutions “…absent Bnos obtaining non-appealable approvals and permits for such use(s).” As the issue of Lake Terrace's parking on Bnos’ lot is presently before the Board and Plaintiff is actively objecting to that application, the issue of parking will be addressed by the Board. If the Board grants Lake Terrace's application, including use of Bnos’ parking lot for overflow, the December 8th Consent Order would have been complied with as approvals would have been obtained regarding the use of Bnos’ property. In that event, there will be no potential future violation of the Consent Orders and thus Plaintiff would not be entitled to the relief sought.
Saying that they are really the intended victims, Lake Terrace, represented by Attorney Matthew Fiorovanti Esq. filed a Motion to Intervene in the matter.
Mr. Fiorovanti wrote:
Desperate to prevent Lake Terrace from obtaining approval from the Zoning Board to continue to utilize its property as a wedding facility, Plaintiff seeks an order preventing Lake Terrace from utilizing Bnos Brocha's parking lot as overflow parking, as specifically requested by the Board.
Specifically, despite seeking to impair Lake Terrace's contractual rights, Plaintiff did not provide notice of this motion to Lake Terrace, rather they only learned of it informally from Bnos Brocha.
Plaintiff would have this court believe that it first learned that Lake Terrace intended to utilize Bnos Brocha's parking lot for 85 additional parking spaces when, on April 21, 2023, it received notice of the Board's May 1, 2023 public hearing.
Plaintiff asserts that after Adam Pfeffer represented to the Board during the May 1, 2023 public hearing that Lake Terrace had a "parking arrangement" with Bnos Brocha, Plaintiff requested that Bnos Brocha confirm that it had no intention of allowing Lake Terrace to use their parking lot for overflow parking. After not receiving such confirmation, Plaintiff filed a Motion to Enforce the Consent Orders, in which Plaintiff requests that the Court order that "Bnos Brocha is to immediately terminate any agreements which may be in place to allow the use of their property for off-site parking for events taking place at the Lake Terrace banquet hall."
The problem with the motion is that Plaintiff was well aware that Lake Terrace intended to seek approval to utilize Bnos Brocha's property for overflow parking before Plaintiff and Bnos Brocha entered into their Consent Order. Despite this knowledge, Plaintiff did not include any prohibition against such use in the Consent Orders. This failure underscores the fact that the parties in this action never intended to prohibit the use of Bnos Brocha's property by Lake Terrace for overflow parking. Had they done so, the parties would have included a specific prohibition against such known intended use.
Indeed, the plain language of the Consent Orders makes clear that the purpose of those orders is to ensure that Bnos Brocha does not use their property as a catering hall, banquet facility or event venue, and must only use the property as a girl's school. The Consent Orders will not be violated as a result of Lake Terrace's pending request to utilize Bnos Brocha's parking lot to accommodate 85 additional parking spaces. Bnos Brocha's property will continue to be used solely as a girl's school and will not be used as a catering hall, banquet facility, or event venue.
Plaintiff knows this full well. That is why Plaintiff knowingly misrepresents to the Court that Plaintiff only learned of Lake Terrace's intended use of Bnos Brocha's property after the entry of the Consent Orders. That is demonstratably untrue. Plaintiff's misrepresentations, which forms the basis of its application for dramatic equitable relief, should not be tolerated by this Court.
Lake Terrace should be permitted to intervene in this matter for the limited purpose of opposing Plaintiff's application to terminate Lake Terrace's arrangement with Bnos Brocha to allow the requested use of Bnos Brocha's property for overflow parking for events at Lake Terrace.
The question of whether, and to what extent, Bnos Brocha's property may be used to accommodate 85 additional parking spaces for certain Lake Terrace events should be answered by the Board and not by the Court. Plaintiff's repeated attempts to litigate land use questions that are presently and lawfully before the Board should be rejected.
The Motion to Enforce Litigants Rights was originally returnable before Judge Hodgson this Friday, June 9. However, as Lake Terrace filed their Motion to Intervene just recently, the motion calendar starts over and their motion is not returnable until Friday, June 23.
The issue with this schedule is that the Zoning Board is scheduled to hold a public hearing on Lake Terrace's Use Variance appeal this coming Monday, June 12, and it would really benefit Lake Terrace if they could "get this motion to enforce litigants rights out of the way" prior to the Zoning Board hearing, as otherwise, Mr. Shea will argue to the Board that the Court needs to first make a determination whether or not their application includes 85 parking spaces in Bnos Brocha's parking lot before the Zoning Board can continue hearing the matter.
Therefore, Mr. Fiorovanti wrote to Judge Hodgson requesting to accelerate his motion to intervene to this Friday, so the matter could be decided already before the Zoning Board hearing on Monday.
In response, Mr. Shea countered that he simply needs "sufficient time" to oppose the motion to intervene and accelerating the motion up this Friday is not sufficient time for him to properly respond.
Judge Hodgson decided to adjourn the matter to Friday, June 30. This will lead to havoc at next week's Zoning Board hearing as explained above...
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1 comment:
The perfect 3 letter “word” to sum it up: Lol
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