JUST IN: MOTION FILED TO OVERTURN LAKEWOOD TOWNSHIP'S BANQUET HALL IN SCHOOLS ORDINANCE

Attorney Rob Shea Esq. has just filed a Motion seeking to overturn Lakewood Township's banquet hall ordinance which permits banquet halls in schools.

The motion asserts that the Ordinance is void because the Township Committee's holding meetings virtually is illegal, as well as for other Statutory violations.

As previously reported here on FAA News, back in December 2022, Lakewood's Township Committee adopted an Ordinance which states as follows:

In all non-residential zones where schools are permitted uses and the Oak Street Core Neighborhood Overlay Zone-1, catering facilities and banquet halls shall continue to be allowed as accessory uses in the school buildings, provided the following parking requirements are met:

For the section of the school utilized for catering and banquet functions (to be known as the Banquet Hall space, but not including bathrooms, food prep rooms, and facilities not associated with the Banquet Hall function, such as guest preparation rooms, etc.) 1.0 parking space shall be required for every 50 square feet thereof.

1650 Corporate Road West LLC, is an industrial park property owner and a party to lawsuits filed against Lake Terrace and Bnos Brocha which allege that they were operating banquet halls without Township approval. As such they stand a lot to lose from adoption of the new banquet hall ordinance.

Therefore, as previously reported here on FAA News back in January 2023, 1650 Corporate Road West LLC, represented by Attorney Rob Shea Esq. filed a lawsuit seeking to stay and overturn the new ordinance.

The lawsuit highlights the timing of introduction of the Ordinance "on the heels of a court ordered shut down of Bnos Brocha's simcha hall."

The First Count of the lawsuit alleges that the Committee meetings where held in violation of the New Jersey Open Public Meetings Act as they were held virtually.

The Second Count of the lawsuit alleges that Deputy Mayor Menashe Miller was prohibited from voting on the Ordinance because 1) he has sons who currently do, or recently did, attend Yeshiva Toras Ahron which has a banquet hall and would benefit from adoption of this ordinance, and 2) his mother holds "a significant position within the administration of Beis Faiga's girls school which operates one of the oldest banquet halls in Lakewood as well as a boys school within the industrial park, both of which could benefit from adoption of the ordinance."

The Third Count of the lawsuit alleges that because Deputy Mayor Miller was prohibited from voting, his vote was "tainted," and without his vote there would not have been sufficient votes to affirm the ordinance, therefore the Ordinance should be overturned.

The Fourth Count of the lawsuit alleges that the public notice for the second Committee meeting was insufficient due to the substantial changes to the Ordinance between first and second reading. "Following the Planning Board's review, the ordinance was substantially changed, yet at no time prior to adoption of the ordinance on second reading was the public noticed regarding the changes."

The Fifth Count of the lawsuit alleges that the Committee failed to notify the Ocean County Planning Board 10 days prior to adoption of the ordinance as required by State Statute.

The Sixth Count of the lawsuit alleges that the Committee failed to provide personal notice to all affected property owners prior to adoption of the Ordinance, which is a requirement for all "substantial changes" to zoning ordinances.

The Seventh Count of the lawsuit alleges that restraining Mr. Shea and Mr. Gemma from speaking longer than 4 minutes, especially regarding such a major issue, was "arbitrary, capricious, and unreasonable."

The lawsuit specifically calls out Township Manager Patrick Donnelly for muting Mr. Shea's mic "without any prompting from the Committee."

The Eighth Count of the lawsuit alleges that the Planning Board violated the Open Public Meetings Act by failing to give the public adequate notice of the Ordinance which they were going to review. The agenda simply stated "ordinance for review," without actually listing the Ordinance by title, number or summary.

The Ninth Count of the lawsuit alleges that the Planning Board simply made changes to the proposed parking requirements, but failed to properly conduct a consistency review of the Master Plan as they are required to do when they review proposed ordinances. They also failed to adopt a Resolution memorializing their own vote or findings, as well as to submit a report to the Committee.

The Tenth Count of the lawsuit alleges that Planning Board Attorney John Jackson's email to the Committee listing the Board's recommendations, did not constitute a "report" (of the Ordinance) which the Planning Board is required to submit to the Committee, nor did the Planning Board even bother to pass a Resolution adopting Mr. Jackson's email as their report.

The lawsuit also notes that this "report" was not actually read into the record at the second Committee meeting, nor was it made available for public review.

Furthermore, this report inaccurately stated that the Planning Board recommended grandfathering in currently operating banquet halls, which in fact the Board specifically stated they did not want to incorporate.

"This provision is at odds with Mayor Coles' on the record representation to the public at the First Reading that the ordinance "is for future applications. This provision is at odds with Mayor Coles' on the record representation to the public at the Second Reading that an existing school's ability to operate an existing banquet hall "would depend on whether or not they've been to the Planning Board already to get that approval as an accessory use.

"Jackson's email also stated that banquet halls should be specifically permitted in the Industrial Park. At no time did any of the Planning Board members state that banquet halls should be specifically permitted in the Industrial Park. Jackson did not read this provision to the Board, nor was it voted on. His comment had no basis in anything the Board stated and further had no bearing whatsoever on the Ordinance as presented," the lawsuit alleges.

The Tenth Count (b) of the lawsuit alleges that it can be "inferred that the Ordinance was inconsistent with the Master Plan," and therefore, if Mr. Jackson's email did constitute a "report," the Committee failed to address any inconsistency between the Ordinance and the Master Plan and publish a Resolution containing the reasons for the deviation from the Master Plan, as required by State Statute.

The Eleventh Count of the lawsuit alleges that the Planning Board's reliance on Administrator Ally Morris' report was "arbitrary, capricious, and unreasonable."

In response to Mr. Gemma presenting his expert report showing that the Ordinance was inconsistent with the Master Plan, Mr. Jackson quickly suggested that Board Engineer Dave Magnos review the ordinance and provide his own expert report. "This was never done. Rather than seeking an expert analysis from its own professionals, the Board instead relied on a report prepared by Morris, who has neither a planner nor an engineer. Morris admitted she did not rely on any expert interpretation or legal authority, but rather, on 'personal experience.' Morris' report set forth that in her personal opinion, banquet halls are an accessory use to a school. Morris is not qualified to make this determination. Since Morris has no expertise in the area of planning, the Board's reliance on her report over Gemma's is 'arbitrary, capricious, and unreasonable.'"

The Twelfth Count of the lawsuit alleges that Township Attorney Steven Secare "tainted the record" at the Second Reading.

"At the Second Reading, Donnelly muted Plaintiff's Counsel in middle of his presentation of Plaintiff's objection. In response to this, Secare advised the Committee that they did not need to allow Plaintiff's counsel to present their full objection since "he is going to sue us anyway.

"Secare vastly overstepped his role as Township Attorney, and in fact took an active position to quash the right's of the public's right to object and be heard. Moreover, he emboldened the Committee to disregard Plaintiff's objection. Most disturbingly, Secare poisoned the Committee against the Plaintiff's position by speculating as to the threat of a lawsuit against the Committee," the suit contends.

The Thirteenth Count of the lawsuit alleges that the Committee failed to review a Planning Board report as required by State Statute.

"At the Second Reading, Mayor Coles specifically references a report from the Planning Board which contains comments regarding the Ordinance. The Committee relied upon this report. The Committee selectively adopted some, but not all of the alleged report's recommendations. At no time prior was the public made aware of the alleged report. At no time was the public permitted to review the alleged report.

"Plaintiff later learned that the alleged 'report' was not actually a 'report' but rather an email from Mr. Jackson's which inaccurately summarized the Board's findings. Same was never reviewed or officially adopted by the Board," the suit charges.

The Fourteenth Count of the lawsuit alleges that the Amended Ordinance is not consistent with the Master Plan and "is not drawn with reasonable consideration to the character of each district and its peculiar suitability for particular uses," as required by State Statute.

The Amended Ordinance applies to all non commercial zones.

The New Jersey Municipal Land Use Law requires that a zoning ordinance or amendment thereof "be substantially consistent with the land use plan element and the housing plan element of the master plan or designed to effectuate such plan element." It further requires "the zoning ordinance shall be drawn with reasonable consideration to the character of each district and its peculiar suitability for particular uses and to encourage the most appropriate use of land..."

"The Amended Ordinance impacts the industrial zone where Plaintiff's property is located. Public commentary was provided at the First Reading expressly stating that the industrial park should be excluded from the Ordinance's effects. Gemma provided testimony to the Planning Board and the Committee that the Amended Ordinance fails to consider the character of each zone.

"The industrial park is populated with industrial uses. There has been a history of litigation as a result of the existing unapproved banquet halls disrupting the operations of multiple industrial properties. Commercial trucks have great difficulty accessing industrial properties and traversing the overcrowded streets as a result of banquet hall activities. Banquet hall patrons regularly trespass onto industrial properties and park in their lots.

"The Amended Ordinance contains no buffer, lighting, or setback requirements, nor does it contain any requirements at all, aside from its minimal parking requirement. Under the Amended Ordinance, a banquet hall would be able to operate a mere 10 feet from an industrial building. The traffic and trespass issues created by banquet halls within the industrial park will be exacerbated by the Amended Ordinance," the lawsuit contends.

The Fifteenth Count alleges that the ambiguous language of the Amended Ordinance effectively creates a Conditional Use ordinance.

"The Amended Ordinance makes banquet halls into an 'accessory use' in schools. As the parking requirements are a 'specific condition' to the accessory use of a banquet hall in a school, the effect of the ordinance is to create a permitted use with conditions which constitutes a 'conditional use.'"

The New Jersey Municipal Land Use Law requires Conditional Uses to "definite specifications and standards which shall  be clearly set forth with sufficient certainty and definiteness to enable the  developer to know their limit and extent."

The Amended Ordinance reads:
For the section of the school utilized for catering and banquet functions (to be known as the Banquet Hall space, but not including bathrooms, food prep rooms, and facilities not associated with the Banquet Hall function, such as guest preparation rooms, etc.) 1.0 parking space shall be required for every 50 square feet thereof.

"The Amended Ordinance contains a non-exhaustive list of areas which do not count toward the parking calculation, ending with the word 'etc.' The Amended Ordinance does not state whether said parking requirement is in addition to that required for the school itself, or if the school spaces can be counted for purposes of meeting the parking condition for a banquet hall. Due to the use of the word 'etc,' the Amended Ordinance is ambiguous on its face, and fails to set forth 'definite specifications and standards' as required by the Municipal Land Use Law," the suit concludes.

As previously reported here on FAA News, back in March 2023, Ocean County Superior Court Assignment Judge Francis Hodgson denied to grant temporary restraints, permitting the ordinance to remain in effect pending the outcome of the lawsuit.

As recently reported here on FAA News, in July 2023, Judge Hodgson granted Mr. Shea's 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.

Attorney Shea has just filed a Motion for Summary Judgement as to Counts One, Four, Five, Six, Eight, Sixteen, and Seventeen, and seeking judgement that the Ordinance and Amended Ordinance are hereby declared void.

The lengthy motion filing emphasizes that the Planning Board failed to make any Master Plan consistency determination with respect to the Ordinance as they are statutorily required to do. In fact, rather than evaluating consistency with the Master Plan, Board Member Justin Flancbaum reframed the entire Ordinance as "an ordinance that requires parking" for simcha halls.

Additionally, the motion challenges the Township Committee's practice of holding meetings virtually, their failure to provide personal notice to affected property owners, and other violations of the Open Public Meetings Act.

At the Board's public hearing, Board Attorney John Jackson Esq. presented two paragraphs that he selected from the Master Plan's mission statement - as opposed to the land use or housing elements, and stated, "perhaps you could view this as consistent, because by taking away the ambiguity... it provides sufficient educational, recreational, and community facilities to meet future needs." Mr. Jackson continued, stating, "it's been my observation that a catering hall is very, sometimes a very important adjunct or accessory to a school because it can host weddings and different types of events that are associated with religious and private schools." Mr. Jackson did not offer any opinions regarding what in the Master Plan may suggest the Ordinance is inconsistent with its Land Use element, nor did he offer any explanation of how a wedding is associated with a school.

Another oddity with Mr. Jackson's involvement with the Board's review of the Ordinance is that after Mr. Shea reminded the Board that just one year prior, the Board had recommended to the Committee that they require 1 parking space per 1 person of banquet hall space capacity in hotels in the Cedarbridge Corporate Campus, and he opined that therefore it would be consistent for the Board to now make the same recommendation for banquet halls in schools; Mr. Jackson immediately popped up that a 1:1 parking ratio "would be very unusual."

Mr. Shea's motion presents 7 legal arguments why Summary Judgement is appropriate:

1) The Planning Board violated N.J.S.A. 10:4-18 during the reorganization meeting for the 2022 term, and as such, had no authority to conduct the November 15 and November 29, 2022 hearings and to render their consistency determination.

2) The Township Committee violated N.J.S.A. 10:4-8 and 10:4-18, rendering the October 20, 2022 and December 8, 2022 hearings ultra vires.

3) The public notice for the second reading was deficient due to substantial revisions to the ordinance - "A non-conformity with the statutory notice provisions when adopting an ordinance renders the resulting action a nullity." Rockaway ShopRite v. Linden.

As per N.J.S.A. 40:49-2, an ordinance may not be adopted at its second reading if an amendment has been adopted that substantially alters the substance of the ordinance. Instead it must be re-noticed to the public before the governing body can hold an adoption hearing.

4) The Committee violated the County Planning Board notice provision of N.J.S.A. 40:55D-15(b)

5) The Committee violated N.J.S.A. 40:55D-62.1 by failing to provide personal notice of the December 8, 2022 hearing because the Amended Ordinance constitutes a Zoning Classification change - The Amended Ordinance reclassifies all non-residential zones to allow a banquet hall a permitted accessory use to a school. The Amended Ordinance would intensify that use and can potentially have all existing schools, making up 10% of the Industrial Park, begin renting out their gymnasiums and auditoriums for any number of undefined events. By the clear dictates of the Statue and case law, personal notice is required for a zone change such as this. Banquet halls are not "of an industrial stripe." As such, this Ordinance, constitutes a fundamental alteration to the existing uses of the Industrial Park, which necessitates the personal notice requirement.

As the Committee has admitted that no personal notice was given regarding the Ordinance, there is no issue of fact as to whether or not the Committee gave personal notice to anyone, therefore, this issue is ripe for Summary Judgement.

6) The Planning Board failed to provide the public with "adequate notice" of the November 15 and November 29, 2022 review hearings in violation of N.J.S.A. 10:4-9.

While the Planning Board is not required to have a full public hearing regarding an ordinance's consistency with the Master Plan, all deliberations regarding the review must be in compliance with the Open Public Meetings Act, including the provision of providing "adequate notice" prior to the notice.

Without adequate advance notice of what a public body is discussing, the public is stripped of its rights under OPMA. The Planning Board, a public body within the meaning of OPMA, held hearings for the purpose of performing a consistency review of the Ordinance. The Ordinance's number, description, and title, and full text were all known to the Board. Despite knowing all this information, they neglected to place it on either agenda with any meaningful specificity for a member of the public to know what they would be discussing. Specifically, both agendas simply stated, "ordinance for review." No further description, nor even the title was included. But for Plaintiff's prior knowledge of the date of the Ordinance's consistency review, even Plaintiff would have no indication that the Ordinance was being reviewed by the Board on either night.

No interested member of the public reading the Board's agenda could possibly have received the adequate prior notice required under OPMA given the inexcusably vague agenda regarding the Ordinance review. (It should be noted that nearly every other item on the agendas, including the "Approval of Minutes," stated with specificity what minutes were being approved.

Based on this contrast within the agendas, it can appear that the Board may not have wanted the public to know what ordinance they were reviewing and what it does. It is for this specific reason that OPMA declares "secrecy in public affairs undermines the faith of the public in government." The failure of a public body to disclose basic information to the public when it is acting on matters of public importance, is corrosive of the publics faith in that body, and therefore in that body's ability to execute its role. As such, the OPMA rightfully forbids this manner of secrecy.

7) The Township had no authority under OPMA to hold virtual hearings on October 20 and December 8, 2022

The Public Policy which constructed the OPMA, as dictated Governor Byrne, was stressed as being that of Legislation of Strict Intent, with very little deviation for exceptional circumstances.

The OPMA very expressly declares "the right of the public to be present at all meetings of public bodies... 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..."

Additionally, in the 2015 case of Opderbeck, the Appellate Division rendered a decision in which technology cannot supplant the strict legislative intent of the OPMA, ruling that "changes in the law often do not occur parallel with technological or scientific advancements... [and] the OPMA remains firmly rooted in 1975." Due to both Governor Byrne's Public Policy of Strict Intent, and Opderbeck's ruling that the OPMA does not advance with technological developments, it is clear that OPRA does not permit virtual hearings.

Both the first and second reading of the Ordinance were held at virtual meetings via Cisco Web-Ex conference software. While it is true that virtual hearings were temporarily permissible under both A4881/S3744, which were signed into law on September 24, 2021, neither of these authorities apply here.

A4881/S3744 suspended all appeals of Land Use hearing based on the holding of a virtual hearing. However, the law contains contains specific language limiting its scope. Specifically, it states that it will only be effective, "during a period declared... as a State of Emergency, Public Health Emergency... or for a reasonable period of time following cessation of a declared emergency, if so provided by Executive Order."

Similarly, N.J.A.C. 5:39-1 sets for the regulations governing virtual public meetings, and also limits its own applicability as follows:

"... a local public body may hold a remote public meeting to conduct public business during a declared emergency if the emergency reasonably prevents a local public body from safely conducting public business at a physical location with members of the public present.

The Public Health Emergency brought on by COVID-19 came to an end on March 4, 2022, with the signing of Governor Murphy's Executive Order 292. Furthermore, the various restrictions on public gatherings and mandates regarding masks have all been lifted. As such, there is currently no "emergency" that "prevents a local public body from safely conducting public business" with "the public present." As such, the limited situations in which N.J.A.C. 5:39-1 allows for a virtual hearing do not apply here. At no time did the Committee raise a safety concern about in-person meetings, nor would one be credible at this juncture. It should further be noted that both the Planning Board and Zoning Board of Lakewood have returned to in-person meetings.

Furthermore, the bar on appeals under A4881/S3744 only applies during an emergency or for a "reasonable period" thereafter. It had been over nine months since the end of the Public Health Emergency that the Amended Ordinance was passed at the Committee's virtual hearing. Therefore, A4881/S3744 does not apply here. As a result, OPMA alone governs the forum for the December 8, 2022 meeting.

In fact, Bill S2603 was reported to the New Jersey Senate on May 18, 2023, for a Second Reading. The bill, which was introduced on May 12, 2022, would "enable public bodies to conduct meetings by electronic means." The Senate Review Committee submitted its review of Bill S2603 on May 18, 2023, along with amendments to same. The Review Committee made the following finding:

"Under the current law, remote meetings, voting, and public comment are only permitted during a State of Emergency, Public Health Emergency, or State of Local Disaster Emergency. This bill removes that restriction. Under the bill, as amended, any meeting conducted by means of communication or other electronic equipment must be open to the public in a manner consistent with 10:4-12.

As the Court can see, OPMA does not permit virtual hearings to take place, outside of the limited exceptions discussed above, and echoed in the Senate Committee Review. As a result, the October 20 and December 8, 2022 hearings were both held in violation of OPMA and are voidable under law.

Plaintiff brought this matter to the Committee's attention in their Second Reading Objection. Despite being fully aware of the situation, not only did the Committee proceed with the December 8, 2022 hearing in virtual format, but they refused to address or acknowledge Plaintiff's objections on these grounds.

According to N.J.S.A. 10:4-15, "any action taken by a public body at a meeting which does not conform with the provisions of [OPMA] shall be voidable in a proceeding in lieu of Prerogative Writ in the Superior Court.

Based on the strict interpretation of OPMA, the Appellate Division's ruling in Opderbeck, and the interpretation set forth by the New Jersey's own Senate, this Court should find that OPMA does not permit public hearings to be held virtually in the absence of a public emergency. The Court should further find that under N.J.S.A. 10:4-15, Plaintiff has properly challenged violation of same. As a result, the Court should find that the action taken by the Committee at both the October 20 and December 8 hearings, including the adoption of the Ordinance and Amended Ordinance, are void as a matter of law.

The Motion for Summary Judgement is returnable before Judge Hodgson on Friday, September 22, 2023.

The Township Committee and Planning Board have not yet responded to the just filed motion.

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