JUST IN: MOTION FILED SEEKING TO DISMISS LAWSUIT WHICH ALLEGES ALL LAKEWOOD ZONING BOARD APPROVALS IN 2023 WERE ILLEGAL

A motion has just been filed in Superior Court seeking to dismiss a lawsuit which alleges that all Lakewood Zoning Board approvals in 2023 were illegal and should be tossed out.

1650 Oak Street LLC, represented by Attorney Rob Shea Esq. is doing all in their power to halt Lake Terrace's operation.

As previously reported here on FAA News, last month, Mr. Shea filed a lawsuit alleging that all of the Zoning Board's meetings this year (including an initial hearing on Lake Terrace's Use Variance appeal) failed to comply with the New Jersey Open Public Meetings Act (OPMA) and therefore all actions taken at those meetings should be null and void.

The Senator Byron M. Baer Open Public Meetings Act "finds and declares that the right of the public to be present at all meetings of public bodies, and to witness in full detail all phases of the deliberation, policy formulation, and decision making of public bodies, is vital to the enhancement and proper functioning of the democratic process; that secrecy in public affairs undermines the faith of the public in government and the public's effectiveness in fulfilling its role in a democratic society, and hereby declares it to be the public policy of this State to insure the right of its citizens to have adequate advance notice of and the right to attend all meetings of public bodies at which any business affecting the public is discussed or acted upon in any way..."

The Act further provides "the right of its citizens to have adequate advance notice of and the right to attend all meetings of public bodies at which any business affecting the public is discussed." "Adequate notice" means written advance notice of at least 48 hours, giving the time, date, location and, to the extent known, the agenda of any regular, special or rescheduled meeting... which shall be... delivered to at least two newspapers... designated by the public body to receive such notices because they have the greatest likelihood of informing the public within the area of jurisdiction of the public body of such meetings...

The key part here relates to the provisions of the Act which defines "adequate advance notice" which must be provided to the public prior to any scheduled meeting of a public body.

According to the lawsuit which was filed New Jersey Superior Court in Ocean County:

Lakewood's Zoning Board scheduled a special meeting for November 28, 2022 to hear Lake Terrace's Use Variance appeal.

On the day of the meeting, Mr. Shea wrote to the Board that they failed to provide "adequate notice" of the special meeting by only publishing notice in one newspaper and not two, and therefore they lacked jurisdiction to hold the special meeting.

Following receipt of this letter, the Board cancelled the scheduled meeting, and re-scheduled the application to be held at a special meeting on February 1, 2023.

On January 9, 2023, the Board held its annual reorganization meeting.

The meeting was only noticed for as a regular meeting in the January 8, 2022 Annual Notice.

The Board reorganized, swore in its professional staff, adopted the 2023 regular meeting calendar, and vested themselves with the quasi-judicial power to hear applications.

The 2023 calendar of regular meetings was published in the Asbury Park Press on January 18, 2023.

On January 30, 2023, Mr. Shea sent the Board another letter which pointed out yet another violation of the Open Public Meetings Act.

This letter advised that due to an error in the January 8, 2022 Annual Notice, every meeting noticed thereunder, including the January 9, 2023 reorganization meeting, had to be noticed as a special meeting, in two official newspapers in order to meet the definition of "adequate notice."

The January 8, 2022 Annual Notice was only published in one newspaper, as opposed to the statutory two, thus rendering it void.

Since the January 9, 2023 meeting was only noticed in the void January 8, 2022 Annual Notice, any business conducted at that meeting, including the re-organization, the appointing of professionals, the vesting of quasi-judicial authority, the adoption of the regular meeting calendar, and subsequent publishing of same was done without authority under OPMA.

Furthermore, the letter advised that since the January 18, 2023 Annual Notice was only published in the Asbury Park Press, it was similarly deficient.

On January 31, 2023, Board Attorney Jerry Dasti wrote a letter to the Board advising that the special meeting scheduled for February 1 must be cancelled, and that the Board must reorganize properly, and re-affirm any actions taken at the January 9, 2023 meeting.

Mr. Dasti further suggested that such actions be taken at the Board's February 6, 2023 meeting, which he erroneously dubbed a "regular meeting."

As the February 1 special meeting was cancelled, Lake Terrace's Use Variance appeal was carried to May 1, 2023.

The February 6, 2023 meeting was only noticed in the void January 18, 2023 Annual Notice.

At the February 6, 2023 meeting, the Board appointed both their attorney and engineer. However, no vote was ever taken to re-adopt the calendar or swear in new Board members.

The new annual notice was published in the Asbury Park Press and the Star Ledger on February 9, and 10, 2023.

This second Annual Notice contradicted the events which took place at the February 6, 2023 meeting, and contained representations that the Board members were sworn in, given positions, and vested with quasi-judicial power to hear applications, when in fact, no vote ever took place with respect to the Board members nor were they sworn in.

On April 27, 2023, Mr. Shea again wrote to the Board to inform them that the Board's reorganization was once again deficient.

The letter stated that the February 6, 2023 meeting was not noticed in accordance with OPMA, and therefore the action taken at the meeting, including the publication of the new annual notice, was without authority and void. As such, the Board had no quasi-judicial authority to hear any applications until they reorganize properly.

Furthermore, the letter alerted the Board that because the annual notice was not published in accordance with OPMA, a "regular meeting" is an impossibility. As such, the May 1, 2023 scheduled hearing must be noticed as a special meeting.

Despite the concerns raised in this correspondence, the Board chose to disregard and the meeting was held.

The Board chairman opened the meeting by saying: Good evening Ladies and Gentlemen. I'd like to call tonight's meeting to order. Tonight's meeting has been advertised in accordance with the New Jersey Sunshine Law. Madam Secretary roll call please?"

Mr. Shea then placed the facts as contained in his April 27 letter on the record.

Board Conflict Attorney John Jackson Esq. responded by advising the Board that he felt the issue was minor, but that if Mr. Shea believed there was a problem, he can have his remedy in Court.

The Board then continued to address Lake Terrace's application and concluded that the meeting meet the standards set forth in the OPMA.

The first count of the lawsuit alleges that the Board is not permitted to meet to conduct official business until adequate notice has been provided to the public.

Because the Board failed to comply with the adequate notice procedures set forth in the OPMA, all decisions, determinations, testimony, submitted exhibits, and all actions taken during the January 9, February 6, and May 1, 2023 hearings are null and void. Furthermore, the Board cannot currently hear any applications until the errors regarding their annual reorganization are corrected.

The second count of the lawsuit alleges that the January 18, 2023 Annual Notice violated the OPMA because the Board held its reorganization meeting on January 9, and published the January 18, 2023 Annual Notice only in one newspaper, nine days after the meeting. OPMA requires that annual notices be published in two newspapers, within seven days after the reorganization meeting.

As this annual notice was deficient, the February 6 and May 1 meetings were not properly noticed whereas any meetings not noticed for in the annual notice must be noticed as special meetings, and the Board failed to notice these meetings as special meetings. As such, all actions taken at these meetings are null and void.

The third count of the lawsuit alleges that the Board failed to recite the Statutory language required by the OPMA.

The Open Public Meetings Act (10:4-10) has a very specific requirement for the statement regarding compliance with adequate notice.

At the commencement of every meeting of a public body the person presiding shall announce publicly, and shall cause to be entered in the minutes of the meeting, an accurate statement to the effect:

a. that adequate notice of the meeting has been provided, specifying the time, place, and manner in which such notice was provided...

Chairman Abe Halberstam's opening statement of "Good evening Ladies and Gentlemen. I'd like to call tonight's meeting to order. Tonight's meeting has been advertised in accordance with the New Jersey Sunshine Law. Madam Secretary roll call please?" failed to comply with the above provision of the OPMA.

The lawsuit seeks an order finding that the Board failed to provide adequate notice in that both the January 18, 2023 and the second annual notices were deficient, and therefore all actions taken at the January 9, February 6, and May 1, 2023 hearings are null and void as those meetings were not properly noticed.

The lawsuit further seeks an order finding that the Board currently has no power to hear applications, and can hear no further testimony with respect to Lake Terrace's Use Variance appeal until such time as it complies with the Open Public Meetings Act.

The suit further seeks attorney's fees and costs of suit and any other such relief as the Court deems equitable and just.

The mere filing of this lawsuit was sufficient for Board Chairman Halberstam to change his opening statement to ensure that it complies with the OPMA. As previously reported here on FAA News, Mr. Halberstam has opened subsequent meetings with the correct Statutorily required opening statement.

The lawsuit names as defendants the Zoning Board and KBS Mt. Prospect, the owners of Lake Terrace. The suit does not name any of the developers who received approvals from the Board which the lawsuit seeks to overturn.

Lake Terrace, represented by Attorney Matthew Fiorovanti Esq. has now filed a Motion to Dismiss the Complaint.

The motion puts forth three arguments; a) the complaint was not filed timely; b) the Board can simply take remedial action to formally ratify its reorganization; c) Lake Terrace is not an appropriate defendant and should be dismissed.

Point I - Plaintiff's complaint must be dismissed as untimely

Despite having previously raised concerns about the Board’s actions to reorganize taken on February 6, 2023, Plaintiff did not file a complaint in lieu of prerogative writs within 45 days of the publication of the notice of the Board’s actions.

The Board’s reorganization on February 6, 2023 was made public in notices published in the Asbury Park Press and Star Ledger on February 9 and 10,
2023, respectively. The 45-day deadline expired on March 27, 2023. Plaintiff’s Complaint was filed on June 8, 2023. Plaintiff’s Complaint is thus time-barred.

Point II - Even if the complaint is considered timely and even if the Board failed to technically comply with the OPMA in some minor regard, the court should not void the Board's actions but rather direct the Board to take remedial action

Even if Plaintiff’s Complaint is considered timely (it isn’t), and even accepting as true Plaintiff’s allegations that the Board committed a technical violation of the OPMA, Plaintiff is not entitled to the drastic remedy sought as a matter of law (vacating 7 months’ worth of Board proceedings involving numerous applications). Rather, Plaintiff’s relief and remedy should be limited to an order directing the Board to take remedial action to formally ratify its reorganization.

Under New Jersey law, the Court has discretion to fashion an appropriate remedy where a public body has violated the OPMA. Where, like here, the alleged violation is a technical, unintentional violation that in no way impacted the Board’s substantive actions or the public’s ability to participate in such substantive proceedings, the appropriate remedy is not the nuclear option sought by Plaintiff, but rather a directive that the Board take action to ratify its prior action.

In this case, the alleged violations are de minimus in nature. According to Plaintiff, the Board failed to comply with the OPMA in connection with the February 6, 2023 reorganization meeting because it failed to publish notice of the meeting in two newspapers as required under N.J.S.A. 10:4-8. Yet this failure in no way impacted the Board’s consideration of any substantive application. The only actions that were taken by the Board on February 6, 2023, were the election of the Chairman and Vice-Chairman, the selection of the Secretary, and the appointment of the Board’s attorney and engineer and planner. These actions were taken in accordance with N.J.S.A. 40:55D-69 and Lakewood Township Unified Development Ordinance (“UDO”) § 18-300D, which require the Board, on an annual basis, to elect a chairman and vice chairman from its regular members and select a secretary, who or may not be a member of the Board or municipal employee. (Significantly, there is no requirement under the OPMA, the Municipal Land Use Law or the Lakewood Township UDO that the Board formally “vote” to re- adopt its regular meeting schedule or to vote to “swear in” the Board’s members, as alleged by Plaintiff. All that the Board must do is simply elect a chairman and vice chairman and select a secretary.)

Accepting Plaintiff’s allegations as true, Plaintiff is not entitled to the drastic relief it seeks. At most, Plaintiff is entitled to the entry of judgment directing the Board to ratify its actions at a duly noticed meeting.

Point III - KBS is not an appropriate defendant in this matter and should be dismissed

Lastly, there is no basis to join KBS as a defendant in this matter. There is not a single allegation of wrongdoing or improper conduct by KBS in the Complaint. Rather, the entirety of the Complaint focuses on the actions or inactions of the Board in allegedly failing to properly reorganize. There is no challenge to any approval granted to KBS. Nor is there any challenge to any substantive Board decision which has impacted KBS’s pending Application.

It appears that Plaintiff has joined KBS as a defendant because Plaintiff is asking the Court
to effectively un-do the 3 public hearings which have taken place to date on KBS’s ongoing Application (May 1, June 12 and July 10). Plaintiff appears to take the position that KBS must therefore be joined since KBS claims an interest in the subject of the action and is so situated that the disposition of the action in KBS’s absence may, as a practical matter impair or impede KBS’s ability to protect that interest. Yet if Plaintiff’s rationale for joining KBS is that its interests in a pending application before the Board may be impacted, then Plaintiff should have joined every single applicant that has appeared before the Board in 2023. Plaintiff’s failure to do so speaks volumes as to its true motivation in this lawsuit: not to correct the Board’s purported violation of the OPMA, but to interfere with KBS’s pending application.
Plaintiff has joined KBS - but not any other interested party - as a defendant because
Plaintiff seeks to interfere with KBS’s pending application. KBS is not alleged to have done
anything wrong in the Complaint, and in the event the Court does not dismiss Plaintiff’s Complaint
in its entirety for the reasons set forth above, the Court should dismiss Plaintiff’s Complaint as
against KBS.

Ocean County Superior Court Judge Francis Hodgson has scheduled oral arguments on the motion for Friday, August 18.

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