As 'tis sure is the season for lawsuits - all funded by the Lakewood taxpayers, of course - the Lakewood Zoning Board recently filed legal action of their own in response to Attorney Rob Shea's allegations that Board member Mordy Gross has a conflict of interest with Lake Terrace's Use Variance appeal.

Not one to miss an opportunity to be involved in litigation when it relates to Lake Terrace, Mr. Shea has now turned the Board's filing right on its head!

At the Board's initial hearing on the application, Mr. Shea, representing 1650 Oak Street LLC, requested that any Board member who has a conflict with Lake Terrace recuse themselves from the application. At that point, Meir Gelley and Moish Lankry recused themselves.

Following the meeting, Mr. Shea wrote a letter to the Board advising that Moshe Gleiberman who sat in on the application, and Mordy Gross who was not present, also need to recuse themselves.

Mordy Gross represented Table Linen in 1650 Oak Street LLC's contentious litigation against Bnos Brocha. That litigation included numerous site plan violations including the illegal use of a banquet hall. As Bnos Brocha's property is part of the Lake Terrace application, and both matters involve the illegal use of a banquet hall, Mr. Gross should now recuse himself.

Moshe Gleiberman is the Vice President of Administration of Beth Medrash Govoha, and he has been quoted in the Asbury Park Press making public statements regarding BMG's planned purchase of a portion of GCU as well as BMG's planned campus expansion on that land purchase.

The APP article indicates that "Mr. Gleiberman spoke as to the uses... and failed to address whether or not it would be used as a banquet hall." This is significant as the architectural plans do appear to show a banquet hall, which is not even a permitted use in the zone.

Scott Kennel and Brian Flannery both testified on behalf of BMG's campus expansion application. As Mr. Gleiberman holds a prominent position in BMG and earns most of his money from that job, Mr. Kennel and Mr. Flannery were in essence working for him. As such, Mr. Gleiberman cannot now, such a short while later be expected to be unbiased in the face of two of his own experts now testifying before him.

Mr. Gross has not recused himself, however, especially as he is an attorney, he is hesitant as to whether or not to recuse himself.

In response, as previously reported here on FAA News, Zoning Board Conflict Attorney John Jackson Esq. recently filed a Verified Complaint on Summary Action seeking an order declaring that there is no conflict of interest with respect to Board member Mordy Gross to Lake Terrace's Use Variance appeal.

Mr. Jackson wrote to the Court:

Counsel for the Board has provided an opinion that there is no conflict of interest with respect to this Board member. The Board member in question is an attorney at law and does not want to take a risk that a legal body may make a determination that he sat on a case wherein there was a conflict
of interest. This application is made to request that the court declare, pursuant to NJS 2A:16-52, that
there is no conflict of interest.

The alleged conflict of interest arises because the Board member in question served as legal counsel to Table Linen, Inc., the defendant in an action also involving the Defendant, 1650 Oak Street, LLC, captioned “1650 Corporate Road West, LLC v. the
Township Committee of the Township of Lakewood, et als.,” bearing Docket Number OCN-L-74-21. The matter has been resolved as between Defendant and Table Linen.

The Board member’s client was one of approximately eight defendants and the issue with
respect to the Board member’s client was whether his client, a tenant of the Applicant’s neighbor, KBS Mt. Prospect, LLC Bnos Brocha, was properly occupying the space within the building in question and whether his client had the proper permits to operate its business. The Board member’s involvement in this litigation should have no bearing on his ability to hear the Application, which is unrelated to the subject of the litigation.

New Jersey Municipal Land Use Law provides that: “No member of the board of adjustment shall be permitted to act on any manner in which he has, either directly or indirectly, any personal or financial interest.”

The Local Government Ethics Law creates a statutory code of ethics that governs when a disqualifying conflict of interest arises for a local government official. The Ethics Law and the common law guide courts in evaluating when conflicts arise. "The overall objective 'of conflict of
interest laws is to ensure that public officials provide disinterested service to their
communities' and to 'promote confidence in the integrity of governmental operations.' "


The Ethics Law provides:
[n]o local government officer or employee shall act in his [or her] official capacity in any matter where he [or she], a member of his [or her] immediate
family, or a business organization in which he [or she] has an interest, has a direct or indirect financial or personal involvement that might reasonably be expected to impair his [or her] objectivity or independence of judgment.

Counsel for the Board has opined that there is no conflict of interest for the following reasons: (1) the Board member has no direct financial interest in the outcome of the application, (2) the Board member has no direct personal interest in the outcome of the application, (3) the Board member has no indirect financial interest in the outcome of the application or in the applicant, (4) the Board member has no indirect personal interest in
this matter, and (5) the Board member has confirmed that his objectivity and/or
independence of judgment with respect to the Application would not be impaired as a result of his involvement in the litigation involving Defendant.

Notwithstanding this advice to the Board, Mr. Shea continues to allege a conflict of interest with respect to Mordy Gross, which decreases the number of eligible members that may hear and vote on the Application.

Due to the fact that a conflict has been formally alleged, and because the Board member does not wish to risk being involved in a conflict of interest, the Board asks that the Court make a declaration that there is no conflict of interest.

Several Board members have stepped down from this application and the Board needs all eligible members to participate in order to have the ability to provide the Applicant with a full Board.

The matter before the Board is a use variance, which requires five affirmative votes. If the Board is unable to provide the Applicant with all seven members, then the Applicant is put at a disadvantage because it must achieve a higher percentage of positive votes than would otherwise be required under the law. For example, if only five members hear the case, then the Applicant must obtain five affirmative votes, which means it
would need 100% of the voting members to vote positively. In contrast, five out of seven members would require only 71% of the voting members to vote positively.

The Board does not want one of its members to step down if there is not actually a conflict of interest and seeks the Court’s determination.

Not one to miss an opportunity to be involved in litigation when it relates to Lake Terrace, Mr. Shea has now shot right back on the bandwagon, writing to Judge Hodgson that while he disagrees with the Board's position that Mordy Gross does not have any conflict, he does agree with the Board that this issue of conflict is so important to be figured out, that he is seeking for a stay on the Board from continuing hearing Lake Terrace's Use Variance appeal until the conflict is worked out!

Under the 1982 case known as Crowe v. DeGioia, the New Jersey Supreme Court articulated the following four standards in which a Motion for Emergency Relief can be granted:

1. The moving party will suffer irreparable harm if the requested relief is not granted;
2. The legal right underlying the moving party’s claim is settled;
3. The moving party has a likelihood of prevailing on the merits of the underlying claim; and
4. When the equities and interests of the parties are balanced, the moving party will suffer
greater harm than the respondent will suffer if the requested relief is not granted.

Mr. Shea wrote a detailed brief in support of why his client's motion to stay the Board from continuing hearing Lake Terrace's Use Variance appeal until the conflict is worked out is in compliance with Crowe.

Point I - My client and the public interest will suffer irreparable harm if the application is not stayed

The instant case is a rather unusual situation because no matter who wins, the parties seem to agree on the emergent nature of this case.

Firstly, there is a clear issue of whether or not the public officials charged with the duty to hear Lake Terrace's application even have the ability to do so.

My client feels, and has presented evidence to the Board that Gross and Gleiberman have an obvious conflict of interest which prevents them from sitting on this application. Evidently, the Board, though they believe the inverse, also feels that this issue is imperative to deal with before the application is even heard.

The Board is correct.

To go forward with the application before this issue has been vetted out would be prejudicial to my client as an objector, and to Lake Terrace as an applicant. Furthermore, the taxpayers of Lakewood must, in the absence of a stay, shoulder the burden of having their public officials and experts potentially re-do the entire hearing. That is not a loss that the general public can recoup, nor is it a necessary one for them to incur, given the readily available alternative of a stay. If the Board is wrong in their assessment that Gross may sit on the application, then the parties need to know before a vote takes place.

Furthermore, if my client is correct about Gleiberman's conflict, then the application has already been tainted, and must be re-heard. A re-hearing at this early stage would be far easier, and less burdensome on the applicant, objector, and taxpayers than a re-hearing would be if the application progresses further.

The Board specifically filed this action against my client, though it is unclear why, to obtain the determination that they feel is necessary for them to move forward and included their own, un-briefed, Order to Show Cause. The Board clearly recognizes the harm that will befall every party involved in this action, if the Court does not make a decision before a conflicted member votes.

In fact, according to the Board's own Complaint, the Board Member in question, in this case, Mr. Gross, is unwilling to risk being involved in a potential conflict of interest. Furthermore, on June 12, 2023 (the day of the recent public hearing), the Board, via email, indicated that that were not inclined to even hear the application until the Court makes a ruling on Mr. Gross' conflict. The obvious choice is for Mr. Gross to recuse himself. Presumably, if Mr. Gross truly had no conflict, the Board would not resort to seeking advisory opinions from the Court and would simply seat Mr. Gross as a member. Based on the fact that they have gone to such lengths, it is obvious that the matter is of great public importance and runs the risk of inflicting grievous harm to the public good if not dealt with expeditiously. As such, this is an issue which needs to be vetted out by the Court before the application goes any further. Conclusively, a stay is warranted to prevent harm to the interests of my client, Lake Terrace, the Board, and the public's interest in knowing that their officials are free of conflict before they vote on matters of public import.

Point II - The defendant is likely to succeed on the merits of a well-settled claim

Determining whether a conflict of interest is a fact-sensitive, totality of the circumstances analysis. As one legal commentator phrased it, would an impartial and concerned citizen, intelligent and apprised of all the facts in the situation, feel that there was the potential for non-objectivity on the part of the officeholder making a decision?

In the instant case, both Gross and Gleiberman meet the criteria as set forth above.

Gross, just over a year ago, represented Table Linen who was a party in the Bnos Brocha litigation. The Plaintiff in that case was an entity which is closely affiliated with the Defendant in this case. They alleged that Table Linen was operating a linen business on a property which was only permitted, by resolution, to operate as a school. The litigation was contentious and lasted roughly two years. In fact, post-judgement proceedings continue to be filed to this day against Table Linen's former landlord, Bnos Brocha. After vacating the property, Table Linen was eventually dismissed from the litigation via a Consent Order under which they agreed to obtain all necessary approvals and permits if they or their successor ever wished to resume occupancy of Bnos' property.

Not only was Gross involved in said contentious litigation within a relatively recent time frame, but Table Linen's former landlord, Bnos Brocha is in fact closely adjacent to Lake Terrace's application before the Board. Specifically, Lake Terrace is seeking the use of Bnos Brocha's parking lot as a stand-alone overflow lot to service Lake Terrace. Bnos Brocha's property is limited to use as a school pursuant to their resolution of approval and a subsequent Consent Order. My client is raising a nearly identical argument here before the Board that Gross opposed in Court. Whether or not Gross will give in to the temptation to side against my client is completely irrelevant. The fact of the matter is that the appearance of that temptation here is a decisively disqualifying factor under established case law.

Gleiberman is similarly conflicted. His financial disclosure forms lists BMG as his primary source of income. Despite representing himself at the May 1 hearing to be a simple employee with no real ties to the company, he in fact holds a high and public rank within the company.

He is the Vice President of Administration at BMG. As quoted in the Asbury Park Press, he has made public statements on behalf of BMG regarding a newsworthy real estate transaction in which BMG purchased 42 acres of land from Georgian Court University. In a further article, he is once again cited discussing the rates at which BMG's newly developed apartment units will be made available. The article indicates that he spoke as to the uses of the basement of the new child care center and specifically failed to address whether or not it would be used as a banquet hall. This is significant as the architectural plans for the building do contain 3 large banquet halls, and the Environmental Impact Study submitted with their application expressly states that the project will include a 530 person catering/banquet hall. This is an important point because the student housing campus will be located in a residential zone and it is questionable whether or not a banquet hall is even a permitted use in the zone.

Gleiberman testified as a fact witness before the Lakewood Planning Board on behalf of BMG, regarding the uses of their application. Appearing alongside him on behalf of BMG were Scott Kennel and Brian Flannery - both of whom are also representing Lake Terrace on their application, a mere month and a half after they represented BMG, where Gleiberman holds such a prominent position. In fact, during his recent testimony, Mr. Flannery advised the Board that he is currently representing BMG and that Gleiberman is his point of contact.

Gleiberman cannot be expected to be unbiased in the face of two of his own experts, one of which appears to still represent him, now testifying before him for a use that is not dissimilar to the one he used them for. At the very least, a reasonable member of the public could certainly view there to be temptation for Gleiberman to act upon his personal interests, given the experts and the use. As such, the Court should find that Defendants have a likelihood of success on the merits of its claim as applied to both Gleiberman and Gross.

Point III - The balancing of the hardship favors a stay of the application while this litigation is pending

This case is again, a-typical, as the equities of all parties will be served via a stay of the application pending the outcome of this litigation.

The Board has already expressed its desire to deal with the issue of the potential conflict before they proceed with the application. Both my client and Lake Terrace, who the Board should have joined to this litigation, are clearly interested in having this application heard without procedural deficiencies that will result in more needless litigation. In fact, my client has gone well out of their way to bring every procedural deficiency to the Board's attention so that both client and Lake Terrace may debate the merits of the matter, without jurisdictional and procedural matters interfering and simply prolonging the matter.

As a result, the Court should stay the application until this litigation has concluded. Allowing the application to continue with a potentially conflicted member seated on it, and another member electing to remain in limbo until the Court makes a decision is in the interests of no one. On the other hand, a stay will allow the application to advance once this issue of conflict has been resolved.

The Board's next scheduled public hearing on Lake Terrace's Use Variance appeal is set for July 10.

Mr. Shea has filed an Order to Show Cause which seeks for a order restraining and enjoining the Board from hearing Lake Terrace's Use Variance appeal "until such time that the merits of the litigation are decided."

Additionally, pending the hearing on the Order to Show Cause, Mr. Shea is seeking temporary restraints which places an immediate restraining order on the Board from hearing Lake Terrace's Use Variance appeal on July 10.

(In other words, the temporary restraints seeks an immediate order - with no hearing - to preliminarily restrain the Board from hearing Lake Terrace's Use Variance appeal on July 10; the Order to Show Cause which will likely not be heard until after July 10 seeks to continue to restrain the Board from hearing the application until the outcome of the litigation, whenever that happens.)

Judge Hodgson is expected to issue a decision regarding the requested temporary restraints, as well as to schedule a hearing date for the Order to Show Cause, in the coming days.

Alongside this new litigation, as previously reported here on FAA News, citing violations of their court orders, Mr. Shea has also filed a Motion in court which seeks an immediate shutdown of Lake Terrace until such time as it receives all requisite, non-appealable approvals. Judge Hodgson has scheduled oral arguments on that motion for next Friday, June 30.

Additionally, as previously reported here on FAA News, Mr. Shea has filed a Motion in court against Bnos Brocha, alleging that their agreement to allow Lake Terrace to use their parking lot for overflow parking is a violation of their Consent Order with Mr. Shea which restricts the use of their property specifically for a school. Lake Terrace has filed a Motion to Intervene in that matter. Judge Hodgson has scheduled oral arguments on both of these motions together for next Friday, June 30.

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