JUDGE HODGSON: THE TOWNSHIP COMMITTEE & FIRE COMMISSIONERS TIED MY HANDS. I NEED TO OVERTURN THE PLANNING BOARD'S DENIAL OF AN DEVELOPERS APPLICATION.

Saying that the Lakewood Township Committee and Board of Fire Commissioners "tied his hands on matter," Ocean County Superior Court Assignment Judge Francis Hodgson today overturned the Board's denial of Franklin Shapiro's application to subdivide the rear yard of 30 Independence Court into a second lot.

Back in September 2022, Franklin Shapiro sought approval from Lakewood Township's Planning Board to subdivide the rear yard of 30 Independence Court into a second lot which would have a new single family house and driveway on the north side of James Street, just west of its signalized intersection with Sunset Road.

This driveway would not require any backing in or out, as they would provide an oversized driveway with a hammer-head turn-around.

The application included a proposal of a 2 foot wide right-of-way dedication to Ocean County as well as an 8 foot wide right-of-way easement to Ocean County along the project’s County Highway frontages, and that this would permit the county to widen James Street to provide for a new, right turning lane onto Sunset Road.

The application was represented by Attorney Adam Pfeffer Esq. and Engineer Brian Flannery. They testified that the application has already received favorable consideration from the Ocean County Planning Board.

Several neighbors spoke up in opposition to the application, citing drainage concerns on their own property due to the loss of trees on the applicant's property, and other concerns.

The application was originally submitted with one single existing non-conformity which the developer proposed to retain with the Minor Subdivision.

The existing tract which is to remain contains a two-story single-family frame dwelling with a second story deck. No variances were requested for the proposed new home, however, to make room for the Subdivision, this lot proposed a Minimum Rear Yard Setback Variance of 7 feet for the second-floor deck, where 20 feet is required.

Mr. Flannery testified that this Minimum Rear Yard Setback Variance is an existing non-conformity because this house built before the Township Committee amended the ordinances to require all decks to be built outside the setbacks.

The existing home also required a parking variance as the house now requires 4 off-street parking spaces and the existing driveway only contains 2 off- street parking spaces. This is also an existing non-conformity as this house was built prior to enactment of the State's Residential Site Improvements Standards which now require additional parking for new residential homes.

Seeing as they were about to get denied, Mr. Flannery quickly agreed to eliminate these two existing non-conformities.

In response to the Board's safety concerns regarding the proposed James Street driveway, the applicant's professionals attempted to request that the Board table the application so they could redraw the plans to eliminate the driveway from James Street and instead provide a driveway easement through the existing driveway on Independence Court.

As previously reported here on FAA News, the Board denied the application citing safety concerns with the proposed new driveway directly onto James Street, with left turns permitted into and off from James Street, just west of the busy signalized intersection.

Mr. Pfeffer tried to interject that "this is a fully conforming application which the Board does not have the authority to deny."

Board Member Eli Rennert retorted that there was an existing setback variance which the application sought to affirm and the Board certainly does have the legal authority to deny affirmation of a variance.

Board Chairman Moshe Neiman added that, as previously reported here on FAA News, the Board had previously denied a "fully conforming" application on Fourteenth Street, citing safety concerns, and here as well there certainly is a safety concern.

Subsequently, on October 25, 2022, the Board memorialized their Resolution of Denial which states:

"After hearing the testimony provided by the applicant and the applicant’s experts and after hearing comment from the general public, and after reviewing the application, maps and exhibits as provided, the board discussed the merits of this application and so finds that:
i. While the applicant does not require any variances, 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 part of the Board. The Board ultimately rejected the application on the basis of significant traffic concerns in light of the shape of the lots at issue and the street and traffic patterns in the nearby area. The Board found that an approval of this application would have significant detrimental effects on the safety of the neighborhood. The Board further found that the applicant’s proposal does not further the purposes of zoning pursuant to N.J.S. 40:55D-2 in that the applicant’s proposal is not the best planning alternative, and the proposed development would not secure safety from fire, flood, panic, and other natural and man-made disasters.
ii. Accordingly, the Board hereby denies the applicant’s request for minor subdivision
approval."

As previously reported here on FAA News, in January 2023, Mr. Pfeffer representing Mr. Shapiro filed a lawsuit seeking to overturn this denial.

The Complaint in Lieu of Prerogative Writs, filed in Ocean County Superior Court, charged that by removing the request for variance relief for the existing deck, "Plaintiff 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. The engineer further testified that the applicant would provide a driveway easement across the existing home lot and provide access to Independence. Notwithstanding the fact that Plaintiff’s application was “as-right” the Planning Board adopted a Resolution of Denial."

The lawsuit alleged that once the developer made the application "by-right," the Planning Board did not have the authority to deny the application pursuant to PRB Enterprises, Inc. v. South Brunswick Planning Board, 105, N.J. 1 (1987), and its progeny, and accordingly "the Planning Board has acted to the detriment of the Plaintiff by denying their application for minor subdivision approval [and] the Resolution of Denial of the Planning Board is arbitrary, unreasonable and capricious."

The lawsuit sought a Court Order declaring the Resolution of Denial to be arbitrary, unreasonable and capricious, and void as a matter of law; compelling the Planning Board to adopt a positive
Resolution of Approval to approve Plaintiff’s Application, awarding Plaintiff’s attorneys ‘fees and costs of suit; and for such other and further relief as may be just.

As previously reported here, M. Pfeffer filed the Plaintiff's trial briefs, arguing that the Board's denial of the application must be reversed because the Board's decision was arbitrary, unreasonable and capricious.

A decision by the Planning Board should be overturned if arbitrary, unreasonable or capricious. Burbridge v. Mine Hill Township, Rowatti v. Gonchar.

A court, upon review of a denial of an application for development by a planning board is to determine as a matter of law whether the board could reasonably have concluded from the record below that the decision was correct. Kessler v. Bowker.

 

In the instant case, the plaintiff respectfully submits that the Planning Board failed to apply
the correct standard of review and erred in denying the plaintiff's application for Minor Subdivision Approval, thus acting in an arbitrary and capricious manner. The Planning Board acted in an unreasonable and arbitrary manner because the proposed development is permitted in the zone, and no variances were sought. Accordingly, Plaintiff’s application to the Planning Board was fully conforming with the land use ordinances of the Township of Lakewood, and the Planning Board should have as a matter of law adopted a positive resolution granting Minor Subdivision Approval.

In connection with preliminary approval pursuant to N.J.S.A. 40:55d-46(b), the MLUL provides: “The planning board shall, if the proposed development complies with the ordinance and this act, grant preliminary site plan approval."

It is clear from the record that the application was fully conforming with the township ordinances and was free from any variances.

Board Chairman Moshe Neiman confirmed after the initial 3-3 vote on the motion to deny that
the application is variance free.

Mr. Neiman noted that, as previously reported here on FAA News, the Board had previously denied a "fully conforming" application on Fourteenth Street, citing safety concerns, and here as well there certainly is a safety concern.

Another Board Member stated, "it’s variance free because we have ordinances which allow things that don’t make sense."

Nonetheless, the board denied the application in a
4-2 resolution.

The Resolution of Denial states that:

The Board found that an approval of this application would have significant detrimental
effects on the safety of the neighborhood. The Board further found that the applicant’s proposal does not further the purposes of zoning pursuant to N.J.S. 40:55D-2 in that the applicant’s proposal is not the best planning alternative, and the proposed development would not secure safety from fire, flood, panic, and other natural man-made disasters.

 

This application was reviewed and approved by the Lakewood Fire District on August 11, 2021 as well as the Lakewood Public Works Department on November 2, 2021. No record or proofs exist that this fully conforming application would not secure safety from fire, flood, panic and other natural man-made disasters. Planning Boards do not have the authority to deny an application for subdivision or site plan approval based on considerations of the general welfare, the purposes of the MLUL, and sound planning. Planning boards must approve a subdivision or site plan unless it fails to comport with specific requirements delineated in subdivision or zoning ordinance.

In Pizzo Mantin, Justice Handler writing for a unanimous Court held that “Although courts have recognized historically the authority of planning boards to act in the general welfare in the exercise of the zoning and subdivision power, that authority was derived not from the nature of the police powers as such but rather from the provisions of the statute delegating those powers to the municipalities."

In Pizzo Mantin, the court went on to explain that planning boards do not possess the authority to deny an application for development solely on the general provisions contained in the MLUL. “Because a municipality must exercise its zoning and subdivision powers by enacting ordinances, the conclusion follows that the municipality may not exercise such powers directly on the general statutory purposes of the MLUL. Municipalities may effectuate those statutory purposes only by incorporating them as standards in duly-enacted zoning and subdivision ordinances.”

A planning board is required to apply the standards set forth in a land development ordinance. As set forth by Justice Pollack for a unanimous Court in Riggs v. Long Beach, “If an ordinance has both a valid and an invalid purpose, courts should not second guess which purpose the governing body had in mind." Even though the Planning Board in Lakewood may disagree with an ordinance they are duty bound to abide by its terms, and approval Plaintiff’s application for Preliminary and Final Site Plan Approval.

In PRB Enterprises v. South Brunswick Planning Board, the Court considered the validity of a zoning ordinance that purported to authorize a planning board to deny site plan approval for an otherwise permitted use based on the volume of traffic the use would likely generate. Justice Stein writing for a unanimous Court held: “The role of the planning board, with respect to permitted commercial or industrial uses, is the grant of denial of a site plan approval. Although site plan review affords a planning board wide discretion to ensure compliance with the objectives and requirements of the site plan ordinance, it was never intended to include the legislative or quasi-legislative power to prohibit a permitted use.”

Pursuant to PRB, a planning board does not have the power to deny an otherwise permitted use based on the volume of traffic it would likely generate. Likewise, the Planning Board in Lakewood does not have the power to deny Plaintiff’s conforming application based upon the supposed parking congestion that it may generate.

In a case close to home, Judge Havey sitting in the Law Division in Ocean County held in Lionel’s Appliance Center v. Citta, that a planning board should not consider off-site factors in granting a site plan approval. There, Joseph Citta proposed two restaurants at the intersection of State Highway 37 and Hooper Avenue in Dover Township (now Toms River). The planning board approved the application. Objectors filed suit, and the court held that traffic problems with Citta’s application at the intersection were not subject to the review of the planning board. Accordingly, as in Citta, the Planning Board in Lakewood did not have the
authority to deny Plaintiff’s application because of off-site parking problems.

 

Other courts and at other times have reached the similar conclusion. In Dunkin Donuts v. North Brunswick, the Appellate Division held that the authority to prohibit or limit uses generating traffic into already congested streets with high rates of accidents is an exercise of the zoning power vested in the municipal governing body, not the planning board. In Demaria v. JEB Brook, the Law Division in Monmouth County held that despite a contentious hearing, the planning board in Neptune Township had no discretion to deny plaintiff’s application for site plan approval since it satisfied all applicable zoning and site plan ordinances.

Accordingly, pursuant to the statutes and case law cited above, the Planning Board did not have the authority to deny Plaintiff’s application for development.

 

For all of the foregoing reasons, the plaintiff respectfully submits that this court issue an order reversing Resolution SD-2498 adopted by the Planning Board.

As previously reported here on FAA News, Planning Board Attorney John Jackson Esq. submitted the Board's trial briefs.

Mr. Jackson noted that numerous neighbors spoke up at the public hearing in opposition to this application. He asserted that " the Board ultimately denied the application due to the concerns raised during the hearing."

The Board's trial briefs argues that the Board did not act in an arbitrary, capricious, or unreasonable manner in denying the application based on traffic, parking, and safety concerns, and therefore their denial of the application should be upheld by the court.

Mr. Jackson wrote:

New Jersey courts have consistently held that actions of municipal boards are presumed valid and will not be interfered with unless the local agency action is determined to be arbitrary, capricious, or unreasonable. Manalapan Builders Alliance, Inc. v. Township Committee.

Furthermore, it is well-settled law that local officials, because of their familiarity with their community’s characteristics and interests, be allowed wide latitude in the exercise of their delegated discretion. Kramer v. Board of Adj., Sea Girt.

Because variances tend to impair sound zoning, a court should give “greater deference to variance denials than to grants of variances.” Medical Ctr. at Princeton v. Tp. Of Princeton Zoning Bd. of Adjustment.

There is no shortage of prior case law in New Jersey wherein the courts have held that the planning board may consider safety concerns in the grant or denial of a subdivision application.

 

In Levin v. Livingston Tp., the court pointed out that subdivision control, like zoning, is a tool of overall community planning. They are “closely related . . . in that both are preventive measures intended to avert community blight and deterioration by requiring that new development proceed in defined ways and according to prescribed standards.” Critically, the court pointed out that it is of essential importance [for the planning board] to determine whether the whole tract proposed to be subdivided is fundamentally suitable for the projected development from the standpoint of area, topography, drainage, soil characteristics, accessibility, availability of utilities and the like.

In El Shaer v. Planning Bd., the plaintiff appealed from a judgment sustaining the planning board’s denial of plaintiff’s major subdivision application. Plaintiff proposed to subdivide a tract encumbered by wetlands and utility easements into ten residential lots. The Board denied the application based on concerns over traffic safety and potential drainage and flooding problems. The Court upheld the board’s denial of the application, finding that while plaintiff may have met the specific bulk requirements of the development ordinance, that did not mean that the plaintiff was entitled to an approval of his subdivision plan. The Court found that the Board applied sound planning concepts to protect the public interest, thereby concluding that the existing physical constraints upon developing the parcel required rejection of the subdivision configuration as designed.

In Pizzo Mantin Group v. Township of Randolph, the Supreme Court pointed out that the delegated powers to regulate land use are themselves part of the police powers exercised by local governments. “Zoning is inherently an exercise of the State’s police power.” Zilinsky v. Zoning Board of Adjustment. Consequently, the general zoning authority, as any police power, must be exercised for the public health, safety, and welfare. Holmdel Builders Ass’n v. Twp. Of Holmdel.

Concededly, in Pizzo, the Court found that the denial of a by-right subdivision based on the “broad purposes of the MLUL” rather than on specific standards contained in the municipal subdivision and zoning ordinances was not a valid exercise of its authority to control subdivisions.

Here, however, the Board did not base its denial on the “broad purposes of the Municipal Land Use Law.” Rather, the Board had significant concerns regarding specific issues tied directly to this piece of property. In particular, the record is replete with concerns on the part of the Board members as to traffic, parking, and safety in the immediate vicinity of the subject property. The Board voiced concerns regarding traffic safety and the fact that another driveway exiting onto James Street would aggravate an already dangerous traffic pattern at the intersection of James Street and Sunset Road. The Board heard many concerns on the part of the public regarding parking and safety issues that would result from a driveway easement exiting to Independence Court.

The Board conducted a full public hearing with adequate notice having been provided to the public. The Board duly considered the testimony of the applicant’s professionals and the objector’s professionals. For any expert witness, the Board can accept all, some, or none of the professional’s testimony. Klug v. Bridgewater Tp. Planning Board. The Board duly considered all evidence presented, including the testimony provided by Brian Flannery and the substantial public comments voiced by several members of the public, and voted to deny this subdivision application for significant traffic and safety issues concerning the subject property and the immediate surrounding area. 

For all of the foregoing reasons, the defendant respectfully submits that the Court affirm the Planning Board’s denial of the application.

At a trial held on Thursday, Ocean County Superior Court Assignment Judge Francis Hodgson overturned the Board's denial of the application, and remanded the matter back to the Board to adopt a Resolution of Approval.

Mr. Pfeffer opened the hearing by reiterating that the Board of Fire Commissioners granted an approval of this application, therefore, because there were no variances requested, the Planning Board had no leeway to deny the application.

Mr. Jackson beseeched Judge Hodgson to not overturn this application, saying, "this is one of those circumstances which is very frustrating to the Planning Board. Lakewood is widely reported to be the fastest growing municipality in New Jersey, and it has been for quite a while. To say that Lakewood has had explosive growth would be an understatement. The Board is critiqued a lot for everything, and it's not frequent that the Board actually denies an application. In this instance, James Street is a busy, high speed road, and the Board members noted these concerns. The neighbors spoke up, telling the Board that there is a highly frequented shul on the block, leaving no on street parking. The Board noted these concerns and ultimately voted 4-2 to deny the application. Board members are frustrated that they are required by the Township Committee to approve plans that they do not believe are safe from a traffic safety standpoint and from overcrowding the neighborhood. So much so, that some Board members begged me ahead of this court hearing, 'you need to find a way to get the Court to affirm our denial of this application."

Mr. Pfeffer shot right back, "the Township's ordinances are set by the Township Committee and the Planning Board simply does not have leeway to ignore whatever Committee allows."

Mr. Pfeffer added that the applicant's professionals provided expert testimony that the application would not cause any traffic concerns, and that the Board does not have their own traffic expert which could have refuted the applicant's professionals.

Mr. Jackson additionally attempted to argue that while the application did not require any variances, it did require a design waiver from providing street trees and the Board did not grant that design waiver, therefore the application was not fully conforming and the Board did have leeway to deny the application.

Mr. Pfeffer pushed right back, arguing that the Board's resolution admits that they did not deny the application due to any design waiver regarding street trees, but rather due to off-tract traffic safety, and fire safety concerns.

Judge Hodgson rung his hands in the air, saying that because 1) the Township Committee has decided that this application is permitted in this area, and 2) the Board of Fire Commissioners gave their approval to the application, and 3) the Planning Board does not have their own traffic engineer who can refute the developer's professionals, the Board's denial is arbitrary, unreasonable and capricious and therefore he is constrained to vacate the Board's denial of the application and to remand the matter back to the Board to adopt a Resolution of Approval.

This is not the first time that recklessness on the part of the Board of Fire Commissioners has caused for a Planning Board's denial of an application to be overturned in Superior Court.

As previously reported here on FAA News, at a recent ruling on a lawsuit filed by Joseph Bitton, Judge Hodgson overturned the Planning Board's denial of the application explaining in part that despite the neighbors concerns for safety of fire trucks on the block, he is forced to overturn this denial because the Board of Fire Commissioners approved this application even without a full-sized cul-de-sac bulb! Mr. Bitton was also represented by Mr. Pfeffer.

This highlighted issue is even more troubling in light of the fact that Harrison Pfeffer - Adam's brother - is a member of the Lakewood Board of Fire Commissioners, and that their attorney is Attorney Ian Goldman Esq. - Adam Pfeffer's partner! As first reported here on FAA News, Aron Hirsch is running in the upcoming election to unseat Harrison Pfeffer.

As recently reported here on FAA News, earlier this week, Judge Wellerson declined to overturn the Board's denial of Besadar Holdings' application, however, he remanded the matter back to the Board to amend their Resolution to clarify whatever legal basis they relied on to deny the application.

To join a FAA News WhatsApp Group, click here.

To join the FAA News WhatsApp Status, click here.