As the Lakewood Planning Board is denying all allegations in Yanky Lipshitz's lawsuit, Ocean County Superior Court Assignment Judge Francis Hodgson is set to schedule a trial date on the matter.
Lakewood Planning Board Attorney John Jackson's own recklessness resulted in the filing of this lawsuit.
As first reported here on FAA News, back in May, in response to heavy opposition from the neighbors, the Planning Board denied Applicable SD 2553 to construct 13 duplex structures (26 houses plus basement apartments) on a new cul-de-sac bulb off of Chestnut Street, across from Evergreen Avenue.
The application was submitted by Chestnut Holdings which is owned by Jacob Lipshitz and Hersh Eissenberg.
As more fully explained here on FAA News, although the applicant's professionals asserted that the application did not require any variances, the Planning Board reinterpreted the Township's Open Space Ordinance to count basement apartments as a separate unit. Based on this new interpretation, the Board found that the Chestnut Holdings application did not comply with this Ordinance. The Board declined to grant a design waiver to provide relief from providing the required Open Space, and thus denied the application.
Subsequently, on Tuesday, June 20, 2023, the Board adopted the Resolution of Denial which was drafted by the Board Attorney.
The Resolution was written extremely reckless.
First the Resolution appears to indicate that under their new interpretation of the Open Space Ordinance, the application does not comply with the Ordinance:
The Board asked about whether the Open Space Ordinance defines unit and expressed concern regarding the lack of space for a playground or recreational space for the units. Mr. Flannery stated that the ordinance has been interpreted to mean, for example, 28 lots is 28 units, irrespective of basement units, since 1979.
The Board said that if there are different families that are going to reside in the basement
units, then 56 units must be considered when applying this Ordinance. The board
confirmed their interpretation that a basement apartment, by definition, is a separate unit.
Then the Resolution does a 180° and contends that the application is conforming!
The Resolution states:
While the application represented a conforming subdivision, it is the duty of
the planning board to weigh the evidence and to exercise its discretion in the
event of significant concerns on the board of the board. The Board ultimately
rejected the application on the basis of significant public safety concerns
regarding traffic flow and the lack community facilities or recreational space, with
the substantial proposed density particularly in light of the basement apartments
noted on the plans. The Board found that an approval of this application would
have significant detrimental effects on the safety of the neighborhood.
The Board finds that the applicant’s proposal does not further the purposes of
zoning pursuant to N.J.S. 40:55D-2:
1. The applicant’s proposal is not the best planning alternative.
2. The proposed development would not secure safety from fire, flood,
panic and other natural and man-made disasters.
Accordingly, the Board hereby denies the applicant’s request for major preliminary and
final subdivision approval.
The massive issue with this wording is that it throws away everything that the Board accomplished by reinterpreting the Open Space Ordinance - which was that the application was able to found to be non-conforming, thus giving the Board the wherewithal to legally deny the application.
This created a massive lawsuit risk, as it's extremely easy to file a lawsuit against the Board when they deny a "fully conforming" application.
In fact, as previously reported here on FAA News, a mere 7 days after the Board adopted their Resolution of Denial, the developers, represented by Attorney Adam Pfeffer Esq. filed a lawsuit seeking to overturn the Board's denial.
The Complaint in Lieu of Prerogative Writs, filed in New Jersey Superior Court in Ocean County, argues that the application was properly noticed and published in compliance with the MLUL, and that it complied in all respects with the land use ordinances of the Township of Lakewood, and did not require, nor did it seek any variances therefrom, therefore, the Board's decision to deny the application was "against the weight of the testimony presented at the hearings and is therefore arbitrary, capricious, and unreasonable."
During the course of the public hearings, the plaintiff introduced testimony from its
engineer/planner who testified that the proposed duplex structures are a permissible use of the
Premises within in HD-7 Highway Development Zoning District, and that no variances were
required, and none were sought.
Notwithstanding the fact that Plaintiff’s application was “as-right” the Planning
Board adopted a resolution of denial on June 20, 2023.
The resolution of denial of the Planning Board is arbitrary, unreasonable and
capricious in that the plaintiff complied in all respects with the zoning requirements set forth in
the HD-7 Highway Development Zoning District, and otherwise meet all conditions of the
Lakewood Township zoning land use ordinances.
Accordingly, the Planning Board did not have
the authority to deny Plaintiff’s application for Preliminary and Final Major Subdivision Approval pursuant to PRB Enterprises, Inc. v. South Brunswick Planning Board, 105 N.J. 1 (1987) and its
progeny.
The suit further contends that the Resolution of Denial contains insufficient conclusions of law and findings of fact not based on those presented at the hearing, which is a violation of N.J.S.A. 40:55D-10(g).
N.J.S.A. 40:55-10(g) requires that the Board make “findings of fact and conclusions based thereon.” Subsection 2 requires same be set forth in a memorializing resolution.
Neither of these conclusions are representative of the testimony provided at the
hearing. At no time did the Board question any expert regarding safety concerns. In fact,
the Resolution itself is devoid of any findings of facts on the record which speak to health
and safety concerns upon which the Board could have drawn its conclusion.
As such, the Resolution is both deficient and contradictory to the testimony set forth on the record and in violation of N.J.S.A. 40:55D-10(g).
The Complaint in Lieu of Prerogative Writs, filed in New Jersey Superior Court in Ocean County, requests judgment declaring the Resolution of Denial to be arbitrary, unreasonable and capricious, and void as a matter of law, and compelling the Planning Board to adopt a positive Resolution of Approval to approve the Plaintiff’s Application for Preliminary and Final Major Subdivision Approval.
The Complaint further seeks judgement awarding plaintiff attorneys’ fees and costs of suit, as well as for such other and further relief as may be just.
Planning Board Attorney John Jackson Esq. has filed an Answer to the Complaint, denying all allegations and demanding that the Plaintiff’s Complaint be dismissed with prejudice and defendants be awarded attorney’s fees, costs of suit and such other relief as the Court may deem fair, equitable and just.
Judge Hodgson has now scheduled a Case Management Conference to be held on Monday, August 28. A trial date is expected to be scheduled at that conference. Trial Briefs will need to be submitted prior to the trial.
As previously reported here on FAA News, Ocean County Superior Court Assignment Judge Francis Hodgson recently overturned the Planning Board's denial of a fully conforming application.
As previously reported here on FAA News, the Board is also currently vehemently litigating a lawsuit filed by Solomon Halpern of Besadar Holdings over the Board's denial of his "mostly conforming" application for 9 new single family homes on a cul-de-sac road along the southwest side of Fourteenth Street, southeast of Curtis Lane. The neighbors who opposed the application at the Board's public hearing have joined the lawsuit to help the Board defend its denial. The trial on that matter is set to be held this coming Monday, July 31.
As previously reported here on FAA News, the Board is currently vehemently litigating a lawsuit filed by Franklin Shapiro over the Board's denial of his application to subdivide the rear yard of 30 Independence Court into a second lot. The trial on that matter was adjourned to next Thursday, August 3.
To join a FAA News WhatsApp Group, click here.
To join the FAA News WhatsApp Status, click here.
No comments:
Post a Comment