Attorney Rob Shea Esq. has filed a lawsuit arguing that due to violations of statutory requirements, all actions taken by the Lakewood Zoning Board this year are null and void.
In a move that can only be considered "insane" even by Lakewood standards, Zoning Board Attorney Jerry Dasti Esq. has failed to recuse himself from representing the Board in this litigation despite that it also involves his personal client.
Even more insane, Mr. Dasti submitted a brief in the matter and openly supported his personal client's positions.
In fact, even more shamelessly, Mr. Dasti even went so far as to mention his client and to put forth his client's position as if that is the Zoning Board's position!
In response, Mr. Shea is now arguing that the Board is showing a bias against his client, before they even have a chance to present their testimony on the application!
As previously reported here on FAA News, in June, 1650 Oak Street LLC, represented by Attorney Rob Shea Esq. 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 their 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.
As previously reported here on FAA News, Board Attorney Jerry Dasti Esq. recently filed a Motion to Dismiss the lawsuit.
Mr. Dasti's opening statement includes the following:
This Prerogative Writs matter is another one of 1650 Oak Street LLC's attempts to shut down its neighbor, co-defendant KBS Mt. Prospect (Lake Terrace). Plaintiff has continuously used the Superior Court to challenge, over and over again, KBS's operations as a means to improve its value and avoid competition...
By way of brief background, Co-defendants, KBS, is the owner of property known as Lake Terrace. Lake Terrace has operated as a banquet facility for over a decade. In fact, the record is clear that before beginning to occupy the property, the caterer obtained a commercial Certificate of Occupancy to utilize the property as a banquet hall. Plaintiff, along with its parent company Sudler, owns various lots surrounding Lake Terrace.
Mr. Dasti is representing Greenwald Caterers in the Lake Terrace banquet hall litigation. In fact, Mr. Dasti's key argument in court on behalf of Greenwald is that "before beginning to occupy the property, they obtained a commercial Certificate of Occupancy to utilize the property as a banquet hall" (an argument which is heavily disputed by Mr. Shea).
It is shocking that Mr. Dasti did not see any reason to recuse himself from this litigation in which his personal client has an interest. It is even more insane that Mr. Dasti - whose legal fees in this matter are being paid by the taxpayers - mentioned his personal client's specific argument that he has been using is his own litigation.
Mr. Dasti's 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.
As previously reported here on FAA News, Lake Terrace, represented by Attorney Matthew Fiorovanti Esq., recently filed a Motion to Dismiss based on similar arguments.
Mr. Shea has just now filed a Cross-Motion for Summary Judgement in the matter.
Mr. Shea wrote:
Point I - There is no question of material fact that OPMA has been violated, therefore, Plaintiff is entitled to a grant of summary judgement
The Board is a "public body" as defined by the OPMA and is not permitted to meet to conduct official business, or take any quasi-judicial actions, without first having provided "adequate notice" to the public. The public policy behind OPMA was "a clear declaration... favoring transparency in the conduct of public bodies and encouraging citizen participation in the democratic process."
Point I(a) - The Board's Annual Notice for the 2022 period was invalid under the OPMA
Point I(b) - The Board's January 18, 2023 Annual Notice violated OPMA, rendering all subsequent meetings as "special meetings"
Notice is jurisdictional, therefore, the "failure to provide notice deprives the Board of jurisdiction and renders null any subsequent action." Shakoor Supermarkets, Inc. v. Old Bridge Twp. Planning Board.
The January 9, 2023 reorganization meeting was required to be noticed in two official newspapers as a special meeting. Due to the Board's failure to comply with this provision, all actions taken by the Board at the meeting, including the Board's reorganization, were all void. As a further result, the Board's January 18, 2023 Annual Notice is similarly void, as the Board had no power to adopt the list of meeting dates or to take any of the actions that it indicated the Board took.
The Board itself agreed with this assessment as per Jerry Dasti's letter dated January 31, 2023 which stated that because the January 9, 2023 meeting was only noticed in one newspaper, all actions taken at that meeting were voided.
As the Court can see, there is no dispute that the Board failed to comply with OPMA regarding the actions taken at the January 9, 2023 meeting. In addition to the above, the January 18, 2023 Annual Notice is also void notwithstanding the Board's failure to reorganize.
Point I(c) - The Board's February 6, 2023 meeting and second Annual Notice violated OPMA and are void
On February 6, 2023, the Board held a hearing to attempt to correct their previous errors. However, the Board never published notice of the February 6, 2023 meeting at all. The date was included in the January 18, 2023 Annual Notice, which was void as explained above.
Point I(d) - The May 1, 2023 hearing, as well as all subsequent hearings on the KBS application, were voidable
Point I(e) - The Board must properly re-organize at an OPMA compliant meeting, and either re-hear or ratify all testimony and decisions to date
On April 27, 2023, following the discovery that the February 6, 2023 meeting was held in violation of OPMA, Plaintiff placed the Board on notice of same. The letter informed the Board that the upcoming May 1, 2023 would need to be noticed as a special meeting. The Board, however, neither provided a proper 48-hour notice, nor did they even respond to Plaintiff's letter. Instead the hearing proceeded despite the Board's lack of authority to hold one.
The Board Chairman commenced the meeting, neglecting to use the Statutory language "that adequate notice of the meeting, specifying the time, place, and manner in which such notice was provided."
The Board's actions are completely contrary to the Public Policy behind the OPMA.
As the Court can see, there can be no serious dispute that the Board has violated OPMA on several occasions, including for its failure to reorganize and to adequately notify the public of its meetings to date. As such, everything that occurred in the KBS application so far is void. The Board has no authority to continue to hear the KBS application. The Court should, as such, find that all actions taken by the Board with respect to the KBS application is voidable. The Court must determine that said actions are void, and that the Board may not hold any further hearings point the matter until they have properly re-organized and re-heard or ratified all testimony to date.
Furthermore, at this time, the Board has no right, whatsoever to hear further testimony as they have not yet properly reorganized.
Opposition to KBS's Motion for Summary Judgement:
Doubtlessly emboldened by the Court's recent sua sponte reversal of its prior rulings and protections afforded to Plaintiff, KBS has responded to Plaintiff's timely Complaint with what is possibly the most ludicrous, misleading, and uninformed Motion they have ever filed. KBS's flagrant misrepresentation of fact and law are not even supported by certification or documentation. It has become evident that KBS has abandoned its tactic of bending the truth, telling half of the story, and misrepresenting facts, in favor of this new approach: lying outright. While Plaintiff would rather focus on the issues of this case alone, Plaintiff cannot let KBS's slander filled, and wantonly misrepresented statement of facts go unanswered.
The story of this case is not one of countless litigations filed by a "land baron," as KBS would have the Court believe. Rather, it is a story of aggrieved property owners who have repeatedly sought relief from both the Courts and public officials in the face of their neighbor's refusal to abide by the law. It is a story of a wealthy and experienced property owner and manager who has operated an unapproved banquet facility operating without local, county, and state permits for same without any regard for the effects it has on the neighboring property owners and their tenants. Therefore, Plaintiff must, once again, begin by correcting the factual misrepresentation that litter KBS's entire brief with nothing but Mr. Fiorovanti's signature to substantiate them. Plaintiff will once again do so by relying on documents and laws which substantiate every part of Plaintiff's argument, and factual recitation.
Despite the Board and KBS's narrative that there has been an endless barrage of litigation filed by Plaintiff, Plaintiff has in fact only filed two other Prerogative Writs aside from this action, the original Banquet Hall litigation and the subsequent Concert Hall litigation which was filed as an Order To Show Cause when Plaintiff discovered that KBS was hosting concerts with 2,000 attendees and no approvals for same. There have been several Motions to Enforce Litigants Rights, most of which were successful or at the very least, acknowledged as legitimate. KBS on the other hand, has filed no less than four motions seeking to either dismiss, modify, or reconsider the restrictions placed upon them by Judge Ford as a result of their operating without approvals.
The Board has demonstrated its predisposition and bias against Plaintiff:
The Board's Motion to Dismiss, and accompanying factual background is equally as troubling and inaccurate as KBS's. First and foremost, the Board's paperwork and certification was filed by Dasti, who has a conflict of interest as applied to the KBS application since he represents Greenwald Caterers in the banquet hall litigation.
Secondly, it is nothing short of shocking that the Board itself makes the following statement in its brief:
This Prerogative Writs matter is another one of 1650 Oak Street LLC's attempts to shut down its neighbor, co-defendant KBS Mt. Prospect (Lake Terrace). Plaintiff has continuously used the Superior Court to challenge, over and over again, KBS's operations as a means to improve its value and avoid competition...
The above quote is truly disturbing for a litany of reasons. Firstly, Plaintiff has not filed any actions aside from this one to challenge the Board's operations. The only other litigation involving the Board was the Declatory Judgement action filed by the Board itself. Second, the Board, with neither certification, nor citation to any document whatsoever, accuses Plaintiff of seeking to shut down KBS purely to "improve its value and avoid competition." As the Court is aware, Plaintiff is not in the business of running a banquet hall, and as such, is not in competition with KBS. More to the point, however, is that the Board's view of Plaintiff, before Plaintiff has even presented any testimony, then it is readily apparent that Plaintiff cannot possibly hope to have any fair hearing before the Board.
Through the above quote and the rest of their brief, the Board has shown its bias and vitriol for Plaintiff, going so far as to falsely accuse them of interfering in their neighbor's business, presenting an unwarranted and frankly uninformed opinion of Plaintiff's other litigations with KBS, and actively making arguments in favor of KBS. Specifically, the Board sees fit to praise KBS's caterer, who is unsurprisingly one of Dasti's clients, by stating, "In fact, the record is clear that before beginning to occupy the property, the caterer obtained a commercial Certificate of Occupancy to utilize the property as a banquet hall." The Board has no cause and no right to make this determination, as the validity of this document, as well as when the occupation of the facility took place, is a point of challenge in the banquet hall litigation. Furthermore, the Board states that, "without admitting any wrongdoing, KBS made this application to 'clear up' any issues with its use of the property." This is not only false but is a shameless bolstering of KBS against the determination of the Board's own engineer, who concluded that this use was a non-permitted use in the M-1 zone. It is undisputed that KBS's use is not permitted and requires a use variance.
It is clear from their filing that the Board has cast aside any appearance of objectivity in the performance of its duties, as well as any pretense of respect for the rights of an interested party. It is further clear that Plaintiff can expect no fair treatment from the Board, as it has already judged Plaintiff as a nefarious entity who seeks to improperly demolish their neighbor's business. Moreover, the Board's inclusion of these mischaracterizations of Plaintiff are further troubling as they have nothing to do with the simple legal question that the parties are here to answer: whether or not the Board violated OPMA.
Judge Hodgson is set to hear oral arguments on the matter this coming Friday, August 18.
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.
Mr. Dasti's first corruption risk in this matter was first warned here on FAA News. Indeed, Mr. Dasti's involvement in this matter has already led to additional litigation which the taxpayers are on the hook for.
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