At the 11th hour just before a scheduled court hearing regarding Lakewood Township's banquet hall ordinance, Township Attorney Robin La Bue Esq. attempted to tell Ocean County Superior Court Assignment Judge Francis Hodgson that she had "just been notified" regarding the hearing.
Judge Hodgson did not buy this argument, and instead granted the Plaintiff's motion.
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. This means that the ordinance will remain in effect pending the outcome of the lawsuit.
As previously reported here on FAA News, back in May, Mr. Shea 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.
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.
As previously reported here on FAA News, Planning Board Attorney John Jackson Esq. responded to the motion.
Importantly, Mr. Jackson did not attempt to assert that the Board did reorganize properly.
Rather, Mr. Jackson attempted 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 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.
Late Thursday, Ms. La Bue wrote to Judge Hodgson requesting an adjournment of the hearing, claiming that "Counsel for the Township Committee did not receive notice of the pending motion until after 4:30pm on 6/29/23 when notified by Counsel for the Planning Board. I respectfully request adjournment of the motion for one cycle to afford the Defendant Township Committee the opportunity to respond to the motion."
This is quite a bizarre claim.
Even if the Plaintiff did accidentally forget to serve this motion on the Township, how did Township also not receive the Planning Board's Opposition, the Plaintiff's Reply Brief, and the court's previous adjournment of the motion?
For no particular reason at all, Planning Board Attorney Alexandra K. Ehrhardt Esq. attempted to assist the Township by submitting a letter "consenting to and joining in the Township Committee's request to adjourn Plaintiff’s motion returnable this morning. "
Mr. Shea shot right back with the Affidavit of Service upon the Township, and opposed any adjournment of the motion.
Judge Hodgson was not impressed with the Township's bizarre claim, and tossed it right out.
Accordingly, Judge Hodgson held a hearing as scheduled on Friday morning, and did not permit the Township's attorney to present any oral arguments.
After considering the motion, Judge Hodgson tossed out the Planning Board's opposition, stating that pursuant to Court Rules, he is required at this point to accept the allegations set forth in the Amended Complaint as true.
"At this stage the Court is bound to accept those allegations and there is no basis for me to deny the motion to amend the complaint," Judge Hodgson concluded.
The Township and Planning Board now have 35 days to Answer the Amended Complaint.
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