Lakewood Planning Board Attorney John Jackson Esq. is trying very hard to downplay the Board's role in the Township Committee's adoption of their banquet hall ordinance.
His efforts are actually a thinly veiled attempt to downplay the behind-the-scenes work of the adoption of the ordinance.
And Attorney Rob Shea Esq., who filed the lawsuit seeking to overturn the Ordinance, is simply not having any of it.
As previously reported here on FAA News, back in January, following the Township Committee's adoption of the "banquet halls in schools" Ordinance, an industrial park property owner, represented by Mr. Shea, filed a lawsuit seeking to stay and overturn the new ordinance.
The complaint contains 15 counts including allegations that the Committee members had conflicts of interests with personal or family connections to schools which would benefit from adoption of the Ordinance, and that the Planning Board failed to make a determination as to whether or not the proposed ordinance was consistent with the Master Plan, as they are Statutorily required to do.
The complaint also alleges that the Township Committee failed to provide personal notice to affected property owners before adopting the new ordinance, and that the Committee adopting the Ordinance by virtual meeting was illegal.
In addition to eventually overturning the ordinance, the lawsuit also sought to temporarily restrain the effect of the ordinance pending the outcome of the lawsuit.
As previously reported here on FAA News, back in March, Ocean County Superior Court Assignment Judge Francis Hodgson denied to grant temporary restraints, permitting the ordinance to remain in effect pending the outcome of the lawsuit.
As previously reported here on FAA News, Mr. Shea has filed a Motion to Amend the Complaint, to add two additional counts as a basis for which he seeks to void the ordinance.
The additional counts involve violations of the New Jersey Open Public Meetings Act (OPMA) on the part of the Township Committee and Planning Board, resulting in the lack of jurisdiction for either party to have held any of the meetings at which the Ordinance was discussed and adopted.
Count Sixteen argues that the Planning Board failed to Reorganize for the 2022 term and had no authority to conduct the November 15 and November 29, 2022 hearings.
NJSA 10:4-18 mandates that a public body must publish an annual notice of all public meetings for the coming year in two official newspapers with 7 days of their annual re-organization meeting.
The Planning Board voted on their 2022 calendar at the November 23, 2021 public meeting.
The annual notice for same was published in two newspapers on December 4 and December 7 of 2021.
The Planning Board held their 2022 re-organization hearing on January 4, 2022.
At the January 4, 2022 hearing, the Planning Board did not vote on or re-adopt the 2022 calendar.
The annual notice was never re-published within seven days of the January 4, 2022 re-organization hearing as statutorily required.
Wherefore, Plaintiff demands the entry of an order against Defendants:
1. Finding that the Planning Board failed to properly re-organize and adopt the annual meetings calendar for the 2022 term.
2. Finding that the November 15, 2022 and November 29, 2022 hearings were ultra vires and void as a matter of law.
Count seventeen argues that the Committee violated the Open Public Meetings Act, thus rendering the October 20, 2022 and December 8, 2022 hearings ultra vires.
NJSA 10:4-18 mandates that a public body must publish an annual notice of all public meetings for the coming year in two official newspapers with 7 days of their annual re-organization meeting.
Under NJSA 10:4-8, all meetings which are not contained within the annual notice must be noticed as special meetings, with said notices published in two official newspapers at least 48 hours prior to the meeting.
The Committee held their 2022 re-organization on January 3, 2022.
The resulting annual notice was published only in the Star Ledger on January 5, 2022.
Neither the October 20, 2022 meeting nor the December 8, 2022 meeting were noticed as special meetings.
As such the Committee had no authority to take any action at either meeting.
Wherefore, Plaintiff demands the entry of an order against Defendants:
1. Finding that the Committee failed to properly adopt and publish their 2022 annual notice
2. Finding that the October 20, 2022 and December 8, 2022 hearings were ultra vires and void as a matter of law.
The lawsuit seeks to invalidate the Amended Ordinance as well as to recover attorney fees and costs of suit and any other relief as the Court deems equitable and just.
"Pursuant to court rules, leave to file an Amended Complaint is to be freely given in the interests of justice," wrote Mr. Shea.
Planning Board Attorney John Jackson Esq. has now responded to the motion.
Mr. Jackson does not assert that the Board did reorganize properly.
Rather, Mr. Jackson attempts to claim that the Board did not play a very major role in the Township's adoption of the ordinance, and therefore their failure to reorganize properly should not be a fault in the Township Committee's adoption of the ordinance.
At the time of the Order to Show Cause hearing, this defendant pointed out to the Court that none of the relief requested in the complaint had anything to do with the Planning Board, other than the demand in the ninth count that the “Board failed their statutory duty” in that the Planning Board attorney submitted a memorandum in the form of an e-mail to the Lakewood Township Committee to convey the findings of the Board’s review of the ordinance at issue. This defendant pointed out to the Court that N.J.S.A. 40:55D-26 does not provide any specifics as to the form the “report” must take. This defendant further pointed out that the “report” to be sent to the Committee does not constitute a resolution or other formal decision of the Planning Board, and that N.J.S.A. 40:55D-26 provides that the governing body will be relieved of the obligation to consider the Planning Board’s report if it is not sent in a timely manner.
Plaintiff now seeks the court’s permission to lodge a new accusation against the Board under a different legal theory. Plaintiff seeks to assert that the Planning Board failed to reorganize, which in turn rendered its authority to consider the ordinance at issue at the 2 public hearings invalid.
This has nothing to do
with whether the ordinance at issue should be invalidated. Even if it is the case that the Planning Board
failed to properly re-organize and notice for the public hearings,
the failure of the Planning Board to transmit its report within the 35-day period relieves the governing body from the requirements of that subsection in regard to the
proposed ordinance. In other words, in this instance, the Planning Board failed to provide the report to the
governing body within 35 days and thus the governing body did not have to consider the report. It is not
the governing body’s fault if the Planning Board did not correctly notice pursuant to the Open Public
Meetings Act.
The motion to amend the complaint should be denied because the allegations contained in proposed counts sixteen and seventeen will do nothing but protract the litigation and cause prejudice to the defendants. This latest argument that plaintiff asserts against the Planning Board has nothing to do with the ultimate issue of whether the ordinance should be invalidated and is therefore moot.
Characteristically, Mr. Shea did not miss a beat.
Mr. Shea responded right back to the Court:
The Board not only engages in revisionist history of the instant case, but also makes assertions which are not only contrary to case law and Statue, but in fact defy all logic.
At the outset, the Board argues that the only role they have to play in the lawsuit is as to question of whether or not Mr. Jackson's email constituted a Master Plan consistency report. This is incorrect.
The Township Committee specifically found that the Ordinance was consistent with the Master Plan - as a result of the Board's review. Therefore, the questions of the validity of that review and the actual outcome reached by the Board are very much issues raised in the lawsuit!
The Board also claims that the Statue absolves the Township Committee from their duty to review a Planning Board's master plan consistency report if a board takes longer than 35 days to submit that report. The Board then seems to indicate that no case can be brought against a Board because any action taken against them is irrelevant in light of this 35-day provision. However, this is incorrect as established case law provides that a court can set aside the adoption of an ordinance where the ordinance at issue is in fact in conflict with the Master Plan. As a result, the analysis of the Board's actions is as necessary as the analysis of the Township Committee's actions.
The Board also states that both Counts 16 and 17 "will do nothing but protract the litigation and cause prejudice to the defendants."
As explained above, the question of what power the Board and the Committee had and when they had it is crucial to the discussion of the validity of its actions.
The fact of the matter is that the Open Public Meetings Act is a legislation of strict intent.
For the Board to take so cavalier an attitude as to seek to avoid Plaintiff's claim simply because it may "protract the litigation and cause prejudice to the defendants," is nothing short of astounding. Plaintiff is not a public body, and Plaintiff did not cause the Board or the Committee to violate OPMA, their own members did that. As such, it is the members of the public, as well as the spirit and intent of OPMA that will be prejudiced if Plaintiff's motion is denied simply for the convenience of the Board and Committee.
Finally, although the Board attempts to present an argument on behalf of the Township as to Count 17, they have presented no evidence whatsoever to suggest that same should be denied. In fact, not only does Count 17 fail to affect the Board, the Defendant that it does affect - the Township - has not submitted an answer to Plaintiff's Complaint as of yet.
Judge Hodgson previously scheduled oral arguments on the motion for this Friday, June 9. However, the motion has now been adjourned to Friday, June 30.
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6 comments:
Personally I am not a supporter of Shea and his client, as there is a clear anti-jewish bias. I have dealt with his client in a few transactions and they make no secret of that. For that reason alone, I hope they fail against Lake Terrace. But regardless, it's about time our boards are held accountable.
When a Township creates an Ordinance that affects the entire Town, they don't have to send any notices to property owners that are affected.
Personally, I am a supporter of Shea and his client. Stop throwing around the bias card, as it’s simply not true.
I a appreciate that the town is finally being taken to task & actually being called out & forced to follow the current laws & statues. Perhaps there wouldn't be any grounds for the lawsuit if it weren't for the Township playing their usual games and picking favorites to accommodate while not playing it by the book. I wish Shea success on behalf of the many residents who do not have the deep pockets for attorneys & go against the Township in court to get them to operate on behalf of all the taxpayers of Lakewood.
I also think that Mr Shea & his client probably have some ulterior motives here. I am assuming that they are not operating a catering hall, night club, or a restaurant which are operating their business at night or on weekends which competes with LT. I can't figure out what happened in the last few years that suddenly Lake Terrace should cease to operate it's business after all of the years there in the same location?
LT doesn't really have events during the regular societal business hours, as attendees generally work during the day as well. I can't seem to understand what triggered this recent battle by Shea & client against their neighbor by recently going to court & wanting to put LT out of business & create a messnhere.
This client (my landlord) is an anti semite and should be forced to sell all of their building the industrial park. They spend time fighting against LT for one reason only. Because LT is Jewish
To Common Sense,
If you want to understand the complaints against LT, then read the lawsuit. It's a public record and is easy to obtain. That's what I did, and boy was it an eye-opener. There's a lot of information there.
But just so you understand the background, LT operates it's banquet hall inside the "Industrial" zone. The neighbor manufactures parts for the military and doesn't run on a 9-5 schedule like businesses in a regular commercial retail area.
In fact, many of the businesses in that zone are open to the wee hours of the morning. They also send and receive large truck deliveries at all hours of the day and night, due to the nature of their respective businesses.
This may shock you, but Lake Terrace is officially just a "school". The property received zoning approval for a change of use from industrial to a relatively small school. However, over the years, the new owner converted it quietly, and without any board approval, into a full fledged wedding hall, which is a non-permitted use. Obviously, as the place became more popular and things became crazy busy on every single night, including on weekends and yomim tovim, the traffic became more and more unbearable for the neighbors (and guests). The Sukkos shuk during Covid also created totally insane conditions, including property damage, for the neighbors just trying to run their business and meet their customers deadlines.
The neighbor attempted again and again to communicate to LT management about the issues, but he was, for all practical purposes, ignored. He then complained to code enforcement, but was told that they refused to get involved and would not enforce the township's laws. Obviously, LT has some serious protektzia.
At this stage, the neighbor was left with no choice but to seek help in court. That is the proper venue, where law abiding citizens go to settle their disputes. It's no different than when folks in this town turn to Beis Din to settle their financial disagreements. Also, in court, you can only play games for so long. At some point, the judge will see through your shenanigans and order you to comply with the law or face real consequences.
And the truth is that, although LT provides a very important service to all of us who can afford him, its operation has grown too large and too intense to remain there. It's time for him to find a different location with way more parking and accessibility for the wedding guests. Then everyone will live happily ever after.
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