RIDGE AVENUE NEIGHBORS ASK APPELLATE COURT TO AFFIRM SUPERIOR COURT'S TOSSING OF YESHIVA TORAS CHAIM'S DORMITORY APPROVAL

Yeshiva Toras Chaim has filed an appeal to the New Jersey Appellate Division seeking to overturn Judge Ford and Judge Hodgson's rulings which tossed out the Lakewood Township Planning Board's approval of the yeshiva's dormitory expansion.

The Ridge Avenue neighbors who filed the original lawsuit have now filed their trial briefs to the Appellate Division, asking for Judge Ford and Judge Hodgson's rulings to be affirmed.

The Ridge Avenue neighbors are represented by Attorneys Jan Meyer and Jonathan Leitman Esq.

As previously reported here on FAA News, back in January 2023, Ocean County Superior Court Judge Marlene Ford overturned the Lakewood Township Planning Board's approval of the Yeshiva's dormitory expansion on the basis that the Lakewood Township Committee has not deemed dormitories to be a permitted use in the residential zoning district and therefore the Board lacked jurisdiction to approve the non-permitted use.

As previously reported here on FAA News, back in March 2023, Ocean County Superior Court Assignment Judge Francis Hodgson denied Yeshiva Toras Chaim's Motion for Reconsideration, concluding that a Motion for Reconsideration is appropriate only when the Court erred in its decision or misapplied the correct standard of review, and not simply when the losing party is dissatisfied with the court's ruling.

As previously reported here on FAA News, the yeshiva, represented by Attorney Matthew Fiorovanti Esq., is appealing these decisions to the Appellate Division of the Superior Court.

Mr. Fiorovanti wrote:

The trial court disregarded the Board’s factual findings and independently held that a dormitory is not an accessory use of a school in Lakewood Township and not permitted in the R-15 zone. The trial court found that the Board therefore lacked jurisdiction to consider the application and vacated the approval accordingly.

In finding that a dormitory is not a permitted accessory use of a school in the Township, the trial court erroneously substituted its own judgment for that of the Board regarding the customary relationship between dormitories and schools such as YTC in the Township.

The Board’s determination that dormitories are, in fact, customarily incidental and subordinate to schools such as YTC, which is both a high school as well as an accredited institution for higher learning, was entitled to substantial deference by the trial court in light of the Board’s unique knowledge of local conditions and could only be reversed if arbitrary, capricious or unreasonable. The Board knows more than the trial court about how all-boys religiously oriented institutions of higher education such as YTC operate with the use of dorms. The Board knows that a dormitory is essential to such school—without a dorm, YTC cannot exist. The Board knows that students study nearly through the night and require a dormitory as an essential component of the school. Yet the trial court refused to defer to the Board’s findings and instead independently concluded that dorms are not a permitted accessory use of schools in the Township.

The trial court applied the wrong standard in reviewing the Board’s determination that dormitories are permitted accessory uses of a school in the R-15 zone. The trial court gave no deference to the Board’s finding that dorms
were, in fact, accessory uses of a school in the Township. Instead, the trial court substituted its own independent assessment of this factual issue for that of the Board in finding that “it’s clear to the Court that is a second primary use on the lot” and is “not an accessory use even under an expansive definition.” The trial court’s application of a de novo standard of review, replacing the Board’s judgment with its own independent judgment, was in error.

In addition to applying the wrong standard of review, the trial court also misapplied the “accessory use” test in independently finding that dormitories are not an accessory use of a school. Under New Jersey law, a board’s determination that a proposed use is accessory to a permitted principal use is entitled to this substantial deference and can only be reversed if arbitrary, capricious or unreasonable.

The trial court did not consider the unique facts regarding how schools such as YTC operate, including (a) the fact that the curriculum requires that study begins early in the morning and continues late into the night, (b) the fact that students of YTC and other similar schools in the Township do not reside in the immediate geographic location of the school but come from locations all over the world, and (c) the fact that YTC is not analogous to a secular public high school in New Jersey since YTC is licensed by the Office of the Secretary of Higher Education of New Jersey to offer a Bachelor of Talmudic Studies Degree.

In addition, the trial court improperly inferred that because the Township specifically allowed for dormitories as a principal permitted use in connection with a planned educational campus in the R-M zone but did not specifically authorize dormitories in the R-15 zone, the Township must have intended to prohibit dorms in the R-15 zone. The trial court’s independent “accessory use” analysis was contrary to well-settled New
Jersey.

By applying the incorrect standard of review and erroneously applying the “accessory use” test under New Jersey, the trial court has upended a well- established custom in the Township. For decades, dozens of schools such as YTC have utilized dormitories as a customary and incidental—and indeed necessary—use. This undeniable fact was expressly acknowledged by the Board and formed the basis of the Board’s conclusion that a dormitory is an accessory use to a school. Indeed, YTC and similarly situated schools in the Township
cannot exist with a dormitory. The trial court’s entry of summary judgment in favor of Plaintiff, and its refusal to reconsider such orders, should be reversed by the Appellate Division.

Attorneys Jan Meyer and Jonathan Leitman Esq., have just submitted the neighbors' trial briefs.

They assert that Judge Ford did apply the correct standard in reviewing the Board’s determination, ultimately finding that a dormitory building was not an “accessory use” to the permitted use of constructing a school in this zoning district, and would require a Use Variance to permit the construction of such dormitory.

Specifically, Judge Ford found that the fact that the Lakewood Unified Development Ordinance (“UDO”) explicitly provides for student dormitories as a primary use in other zones expresses the legislature’s intention that they be treated as primary uses and not as accessory uses. Further, Judge Ford found that the extremely intensive and obtrusive proposed use of the property precluded a finding that it was a proper accessory use.

Judge Ford correctly determined that there were no questions of material fact that a student dormitory is not an accessory use to the permitted use of a “school” in an R-15 zone in the Township of Lakewood.

Judge Ford stated that it is “clear to the Court” that this is a second primary use on the lot and “not an accessory use even under an expansive definition.” In other word, Judge Ford found the Board's approval to be unreasonable, as there was no way to interpret the statute in a reasonable manner in which it comports with the decision of the Board.

A substantial portion of Judge Ford’s reasoning involved the fact that the Lakewood UDO explicitly treats student dormitories as a primary use in certain zones implies that they did not intend for
them to be treated as accessory in other zones. This is purely a matter of statutory analysis and interpretation.

Judge Ford engaged in this analysis, looking at the five explicit accessory uses in an R-15 zone, the UDO’s definition of accessory use, and the Planned Educational Campus's categorization of student dormitories as a primary use on Planned Educational Campus zones. In interpreting these statutes, Judge Ford determined that the fact that the legislature, in the context of a Planned Educational Campus, specifically provided for Student Dormitories as a primary use meant that they did not intend for them to be included in the catchall accessory use provision.

This analysis is purely legal, and there is no reason that Judge Ford should have had to defer to the Planning Board on this matter.

Moreover, there was never any testimony or determination by the Board as to the intensity of the purported use and/or its effect on the neighborhood. A substantial portion of Judge
Ford’s decision was her determination that the multi-story dormitory intended for use by over 180 teenagers was too intense for an R-15 zone, without a use variance. The impact of a purported accessory use on the zoning plan and on the neighbors is a factor as to whether the use can qualify as “customary." Tanis v. Twp. of Hampton. As no findings were made by the Board as to the impact of the large dormitory in the residential zone, the Board cannot be deferred to on this matter.

The only aspect of Judge Ford’s decision that the Yeshiva can even meaningfully argue should have been entitled to some sort of deference is Judge Ford’s statement that “I agree that the authority of the Board, the jurisdiction of the Board, is driven not by a subjective analysis of what within the community of Lakewood the Board feels is appropriate and just in connection with an application, but what the law views and what is authorized under the Municipal Land Use Law from a bigger perspective.”

This comment is clearly incorporating the prior arguments that are due no deference. Indeed, in explaining this comment, Judge Ford explicitly referenced the highly intensive prospective use, and the fact that neighbors in the R-15 zone would not be on notice that they may have a large
dormitory build next door, without any Use Variance.

Accordingly, there is no deferential standard due to the Board’s decision, as Judge Ford’s decision is based on 1) statutory analysis and 2) matters which the Board did not opine on and, indeed, that are patently obvious to not be present. There is no way that the Appellants can make a reasoned argument that the dormitory is not an extremely intensive use that would have a disproportionate impact on the local R-15 zone and the residents therein. This is why Judge Ford used language indicating, essentially, that the standard of review is immaterial, and the decision would be the same, even under an abuse of discretion standard.

The Yeshiva extensively cites to caselaw that a list of accessory uses not be interpreted as exclusive. They imply (or state) that Judge Ford’s decision
somehow runs afoul of this caselaw. But this is simply incorrect, as Judge Ford never stated or ruled that the list was exclusive. Rather, she found that uses which were specifically anticipated by the UDO as primary uses cannot be shoehorned into other zones, where they are not permitted, as alleged accessory uses.

The Lakewood UDO identifies five permissible accessory uses in an R-15 zone: a) residential private garages, b) sheds, c) greenhouses, d)
private swimming pools, and e) home occupations. The UDO also includes a general definition for accessory use - “a use, structure or building that
is customarily incidental and subordinate to that of the principal and on the same lot.” In addition, the UDO provides that student dormitories are a primary use on Planned Educational Campus zones.

Judge Ford found that in interpreting the UDO, the fact that student dormitories are a primary use in some zones, this expresses the legislatures
intention that they be treated as primary uses, and not accessory ones. “I am persuaded by a couple of issues. One is that Lakewood Township has provided for dormitories to be a second primary use within an educational campus, and they provided an ordinance for that to address those standards… Where the Ordinance addresses [dormitories] it addresses that… a dormitory would be a second primary use within an educational campus.”

Somehow, the Yeshiva seeks to misconstrue this point, in which Judge Ford adduces that the legislature specifically expressed an intention to not treat dormitories as accessory uses, into meaning that Judge Ford ruled that nothing but the five permitted accessory uses can qualify as an accessory use. This is simply not the case.

It is true that the caselaw supports the fact that a list of accessory uses is ordinarily not to be treated as exclusive. It is also true that the Lakewood UDO
itself implicitly acknowledges this, by providing a general definition for accessory use. But that does not mean that items that were specifically anticipated by the legislature and addressed by the legislature as a primary use can nonetheless qualify as an accessory use.

The reason why the caselaw expresses that lists of accessory uses should generally not be treated as exclusive is because of “the impracticality of defining in advance every permissible accessory use,” as “boards and courts will undoubtedly have to address unforeseen uses.” Tanis v. Township of Hampton.

What Judge Ford adduced from the UDO explicitly providing for dormitories in other zones is that this is not an “unforeseen use," rather, this is a foreseen use, which the legislature decided to allow in certain zones, but not in others.

Rather than address this argument, the Yeshiva, in a single sentence, without any citation, simply handwaves it away, simply stating that the inclusion of dormitories as a principle use is “irrelevant” to whether a dormitory is an implied accessory use for a school. Notably, the Yeshiva does not even present any logical reason as to why a legislative declaration that a particular use is a primary use in certain zones is “irrelevant." Nor do they cite to any caselaw standing for this essential proposition. Instead, the Yeshiva simply cites to caselaw establishing that there is such a thing as an implied accessory use, then says the statutory determination as to dormitories in other zones is irrelevant. There is no logical connection from one to the other - let alone any caselaw to support the position claimed.

Judge Ford made clear that the intensive nature of the proposed use - a multi story residence hall, sufficiently large to house 180 teenagers - was a substantial factor in her decision.

This concern of the intensive nature of the use is not one that was made up by Judge Ford. It is found throughout the caselaw regarding accessory use in the state of New Jersey. For an accessory use to qualify as “incidental”, as required, it must be “minor in significance.”

The Tanis Court found that “a use which impairs the municipality's land use plan or interferes with the neighbors' use and enjoyment of their properties would not be one the governing body
intended to permit.” This is clearly what Judge Ford is referring to in extensively relying on the intensity of the use in ruling that a dormitory cannot be an accessory use in an R-15 zone. Having 180 teenagers next door, in a zone that is intended for single family homes, dramatically changes the character of the neighborhood and affects the neighbor’s use and enjoyment of their property.

Despite Judge Ford’s heavy reliance on the intensity of the proposed use, the Yeshiva barely addresses this matter at all.

The Yeshiva presents purported arguments that the details of their operations, such as the intensive nature of the course of study, should for some reason have some bearing on this matter. They assert this without any citation to any case that stands for the proposition that whether something is an accessory use is based on the particularized need for such accommodation by the applicant. On the contrary- the caselaw is clear that this is not a consideration.

The use must be “customary”, which means
that it must be “so necessary or commonly to be expected that it cannot be supposed that the ordinance was intended to prevent it." State v. P.T. & L. Construction Company, Inc.

The question is one of, essentially, statutory interpretation. When the UDO provides that “schools” are a permitted use in an R-15 zone, does that necessarily imply that student dormitories are necessarily permitted as well?

This question has nothing to do with the operations of a particular applicant, it is about the definition of a word, and how it is interpreted by people. The Yeshiva further argues that their status as a degree granting institution somehow further indicates that they are entitled to treat dormitories as an accessory use. Firstly, this is wholly irrelevant, for the reasons set forth above. The question is about “schools," not about the nature of this particular school. If they were a ski school, they would not be entitled construct a ski lift, even if ski lifts are clearly accessory for ski schools. The statute provides for “schools," not a particular type of school. What constitutes an accessory use to “schools” generally is what governs, not what is a requirement for this particular school, or any particular category of school.

Moreover, though, the matter of the status of YTC as a degree granting institution is not properly before the Court. The facts underlying this claim were not raised at the Subject Hearing, nor were they raised in the initial motion for summary judgment.

For all of the foregoing reasons, together with those set forth in the underlying motion papers and the oral arguments related thereto, Judge Ford's Summary Judgement Order, and Judge Hodgson's Reconsideration Order should be affirmed, in their entirety.

The Planning Board will also need to submit their Trial Briefs. The yeshiva's reply brief is due Wednesday, July 12. No date for oral arguments has yet been set.

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