LAWSUIT SEEKS FOR COURT TO STOP BNOS BROCHA FROM PERMITTING LAKE TERRACE PATRONS TO PARK IN THEIR LOT

Bnos Brocha recently told a judge that their industrial park neighbors' allegations are "speculative" as there is currently no Lake Terrace parking permitted in Bnos Brocha's parking lot.

Their neighbors have now responded with photographic evidence asserting that there already are Lake Terrace patrons parking in Bnos Brocha's parking lot - which is a violation of their previous Court Order.

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 and here on FAA News.)

As first reported here on FAA News, in November 2020, after learning that Bnos Brocha rented space to a linen store called Table Linen, LLC, a/k/a La Tableau, without ever having received Township approval for this outside business on school property, Clayton and Sudler, represented by Mr. Shea also filed a lawsuit seeking to immediately shut down operation of all non-school purposes uses on their property.

Subsequently, Clayton also learned of the existence of Bnos Brocha's simcha hall which also never received Township approval, and they amended their lawsuit to include this additional non-school use as well.

Following an injunction hearing in January 2021, Ocean County Superior Court Judge Marlene Ford signed an order granting injunction restraints against Bnos Brocha from using the Simcha Hall for "any business, non-school purposes," pending the outcome of the lawsuit.

At a subsequent hearing in February 2022, Attorney Howard Lipstein Esq. explained that the simcha hall was still operating as the simcha hall is not "for business purposes," but rather, "Bnos Brocha is a community school for the Religious Jewish community, and the banquet hall is used strictly for religious events by members of the community school."

Judge Ford signed an order permitting "the banquet/catering facility... to be used only for school purposes by defendant Bnos Brocha and/or any successors, vendors, for purposes associated with the school and not for business or commercial use."

Subsequently, Clayton obtained a copy of the simcha hall use agreement which indicates that the school does rent out the hall for a fee - in contrast to the representation by their attorney at the February 17, 2022 hearing.

Clayton also obtained a copy of Bnos Brocha's school calendar which indicates that their last day of school was June 22nd.

Clayton's investigative team observed the simcha hall being used on 16 days after the school year ended.

In response, at the end of August, Clayton filed a Motion to Enforce Litigant's Rights, seeking to "immediately cease all activity in the simcha hall until such time as it receives all requisite and unappealable approvals for same."

As the news was previously broken here on FAA News, on September 23, 2022, just before Rosh Hashanah, Judge Ford granted the Motion and 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.

However, this relief was shortlived, as mere days after signing this Consent Order, as reported here on FAA News, Clayton Associates filed an Order to Show Cause with Temporary Restraints after Bnos Brocha started construction for an expansion of their existing parking lot.

While this motion was pending, Mr. Shea alerted the Court of a subsequent violation which occurred since the filing of the Order to Show Cause - Bnos Brocha rented out their building as a banquet hall for a Bar Mitzvah.

This motion was withdrawn after Bnos Brocha signed a Consent Order to cease all construction work on their property and to restore the work area other than the drainage improvements.

Recently, 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, as previously reported here on FAA News, Mr. Shea has filed a Motion to Enforce Litigants Rights.

"As such, Plaintiff must turn to the Court for enforcement of the two prior Consent Orders.

"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.

Mr. Shea's proposed Order states:

ORDERED, that Bnos Brocha, Inc. (“Bnos”) is hereby found in violation of the Consent Orders dated December 8, 2022, and January 9, 2023. The Court further finds that Defendants’ actions constitute a willful and unjustifiable violation of same;

ORDERED, that Bnos 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;

ORDERED that Defendants shall pay sanctions in the amount of $_________ for their repeated violations of the March 8, 2021 Order and the February 17, 2022 Order;

ORDERED, that Bnos shall pay Plaintiff’s attorney fees and legal expenses related to the filing of this motion. Plaintiff’s counsel shall submit an Affidavit of Services within 15 days of this Order. The same shall be paid within 30 days from the date in which the affidavit of services are approved by this 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 wrote:

Plaintiff’s present application is solely based upon the assertion that Bnos may, at some unknown point in the future, allow overflow parking from Lake Terrace in its parking lot and that this is somehow a violation of the Consent Orders. In short, Plaintiff’s motion is at best premature and at worst, purely speculative. Notably, nowhere does Plaintiff assert that such parking is presently taking place or that Bnos is in any way currently violating the Consent Orders or its approvals.

As there is no active violation of a court order, there is no basis for the Court to grant the relief sought and this Court should deny the Plaintiff’s motion.

Plaintiff’s assertion is based upon an application brought by Lake Terrace presently pending before the Lakewood Township Zoning Board (“Board”). An application in which Plaintiff has and continues to be engaged as an objector, including appearing at the hearings and making submissions to the Board.

Notably, as recognized by Plaintiff, Bnos is not part of that application. Therefore, there is no basis for Plaintiff’s claim that Bnos is violating the Consent Orders.

Moreover, in light of the on-going Lake Terrace application in which parking is an issue and at which Plaintiff is identified as an objector, Plaintiff must await a decision by the Board before involving this Court in that matter. As Plaintiff has failed to exhaust its administrative rights, the motions is premature and must be denied.

In the matter at bar, Plaintiff is actively objecting to Lake Terrace's application before the Board, including aspects of parking. Any issue Plaintiff has with Lake Terrace's application is properly before the Board, not this Court. As such, this Court has no jurisdiction to address the issue of parking
related to Lake Terrace's operations at this time. Accordingly, Plaintiff’s motion must be denied.

Finally, 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.

Mr. Shea has now countered up with a Reply Brief, which includes photos and videos showing that indeed, just recently, on May 30 and June 1, 2023, Lake Terrace patrons were observed parking in Bnos Brocha's parking lot.

Mr. Shea wrote:

Bnos Brocha first indicates that no violation of the Consent Order has occurred because no parking has yet occurred in their lot by Lake Terrace patrons. However, this assertion is not only misguided in its theory, but also factually incorrect.

Additionally, as Adam Pfeffer already represented at the Zoning Board public hearing that an agreement currently exists to allow Lake Terrace to use Bnos Brocha's parking lot to service their events, there is nothing "speculative" or "unqualified" about any of the allegations here. As such, Bnos Brocha's argument that no violation has taken place on these grounds must fail.

The Consent Order is clear that if Bnos Brocha wishes to change the use of its property to something other than its current school use, then it must obtain all requisite, non-appealable approvals. There is currently no application pending before the Board for Bnos Brocha to operate as a stand-alone parking lot.

Bnos Brocha next argues that the existence of Lake Terrace's Zoning Board application creates an administrative remedy which the Plaintiff must first exhaust. This argument is again misplaced.

Plaintiff's claim arises from the Consent Order entered into with Bnos Brocha which mandates that the parties adhere to the strict language of the resolutions of their Planning Board approvals. Neither resolution says anything about the use of the property as a stand-alone parking lot to service a banquet facility. As such, since Bnos does not have any approval from the Board for same, and the Plaintiff has presented photographic evidence that Lake Terrace patrons are in fact parking in Bnos Brocha's lot, Bnos is currently and unquestionably in violation of the Order regardless of Lake Terrace's Zoning Board application.

Furthermore, Bnos Brocha is not an applicant at the Zoning Board. They have not filed for any variance that would allow them to operate outside of what they agreed to in the Consent Order. As such, there is no administrative remedy for the Plaintiff to exhaust against Bnos Brocha as there is no such requirement in the Order.

Finally, Bnos Brocha argues that if Lake Terrace does receive an approval, then Bnos Brocha will have somehow complied with the Consent Order, and in effect, have also received the approval. This is a rather contradictory stance considering that Bnos Brocha is not an applicant. Furthermore, the Consent Order mandates that they abide by the "strict language" of the Planning Board's July 23, 2013 Resolution which states the following:

Applicant shall re-submit this entire proposal for re-approval should there be any deviation from the terms and conditions of this resolution or the documents submitted as part of this application...

In other words, should they wish to operate as a stand-alone parking lot, they must resubmit their entire Site Plan for review and re-approval.

Considering that stand-alone parking lots are not a permitted use in the zoning district, they would also need to apply for a Use Variance from the Zoning Board. Until such time as this occurs, and Bnos Brocha receives all "non-appealable approvals and permits for such uses," they will remain in violation of the Consent Order if they deviate from their initial approvals as defined in the Consent Order, and the conditions contained therein.

Bnos Brocha and Lake Terrace are fully aware of the restrictions that apply to each of their properties. The Court should not tolerate their clear attempts to help one another circumvent said orders.

As a result of the foregoing, the Court should find Bnos' Opposition unconvincing, and declare them in violation of the Consent Order.

Saying that they are really the intended victims, Lake Terrace, represented by Attorney Matthew Fiorovanti Esq. has 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.

Mr. Shea responded with Opposition, arguing that KBS should not be permitted to intervene in this matter as a) they do not have an “adequate interest in Plaintiff’s Motion to Enforce the Consent Order” and b) Bnos Brocha is already representing the interests of KBS.

Judge Francis Hodgson has scheduled oral arguments on both motions for this Friday, June 30.

The Township, which is also a named Defendant in this lawsuit, has not yet responded to either motion.

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