Boosted with support of Lakewood Township's ordinances, developers are trying desperately to force the Planning Board to approve an unsafe driveway on James Street.
Despite a recent court order forcing the Planning Board to approve Franklin Shapiro's application to subdivide the rear yard of 30 Independence Court into a second lot, on Tuesday night the Board pushed back real hard, insisting that the developer must relocate the driveway from James Street to Independence Court.
Attorney Adam Pfeffer Esq. responded by threatening the Board that he will run right back to court on the matter.
Indeed, Mr. Pfeffer has kept his word and ran straight back to court, FAA News has learned.
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 New Jersey Superior Court in Ocean County, 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 on FAA News, Mr. Pfeffer filed the Plaintiff's trial briefs, arguing in part that 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. 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.
As previously reported here on FAA News, Ocean County Superior Court Assignment Judge Francis Hodgson agreed, overturning the Board's denial of the application, and remanded the matter back to the Board to adopt a Resolution of Approval.
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 the 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.
As previously reported here on FAA News, at their public hearing on Tuesday night, the Board conceded that they were Court-ordered to approve the application, however, citing heightened safety concerns, they vehemently conditioned the approval in accordance with the applicant's earlier concessions which was to eliminate the driveway from James Street and instead provide a driveway easement through the existing driveway on Independence Court.
Mr. Pfeffer argued that the developer only offered this concession during the Board's initial public hearing as a way to avoid litigation, however, now that he already needed to litigate in court in order to get his approval on remand, he is no longer offering to provide a driveway easement through the existing driveway on Independence Court in lieu of his planned driveway on James Street.
Mr. Pfeffer added that he is no longer willing to relocate the driveway as he already received Ocean County Planning Board approval for a driveway on James Street and now he doesn't want to go through the need to amend that approval.
The Board stood their ground and insisted that it's simply way too dangerous to permit a driveway on James Street.
Mr. Pfeffer threatened to run right back to court to get his way.
Indeed, Mr. Pfeffer immediately made good on his threat and wrote a letter to Judge Hodgson "snitching on the Board."
The letter states:
These conditions had been discussed and offered by the developer during testimony at the original
hearing but the Board still voted to deny the application. The application as presented was
fully conforming and the Board should not be allowed to impose these conditions on a fully
conforming application, especially after they failed to accept these conditions at the first hearing and still
voted to deny the application. I would ask that this matter be listed for a conference before your honor.
Judge Hodgson today agreed to schedule a conference on the matter, which is to be held next Thursday, August 31, 2023.
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5 comments:
Its about time that people in this township are held accountable. Zoning approvals and variances should not be about how connected you are in this township.
And if James street is too busy for a driveway, how are they approving new office buildings, warehouses and malls along James/Cross Street? One residential driveway won't make a difference. We need one rule for everyone, not depending on who you know, who your lawyer is, or what lie your engineer will tell.
"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."
What precisely does the Township Committee find attractive regarding driveways at such busy intersections??
Bigger question:"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 the Committee allows."
If only we had a Master Plan Committee, including a Housing Density Subcommittee who could have reviewed our zoning ordinances and make recommendations where construction should not be permitted...
Oh, wait, now I remember! We did have a Master Plan Committee and a Housing Density Subcommittee, and Adam Pfeffer was part of both of those! Additionally, after scratching my head, I just recalled that said Housing Density Subcommittee held top secret closed for meetings when they approved all the UP ZONING which Adam Pfeffer is now in court forcing the Planning Board to approve!
The plaintiff developer should not be allowed to get away with installing a driveway on James Street, no matter what!
Everyone in town knows that the NJ DOT is planning to divert thousands of vehicles that want to make a left turn onto Central Ave from the super busy highway known as Route 9, to instead make all those left turns onto James St. All those vehicles will then have to make a right turn at HIS corner of Sunset Road to access the Central Avenue corridor.
Anon 4:18 made a foolish comparison to other sections of James St. that aren’t turning into the new Route 9. This is beside the fact that those applications have NOT even been approved. Anon 4:18 is selfishly trying to deceive everyone with his lies. His driveway at that intersection will wreak even more havoc onto an already nutty traffic mess.
Plus, let’s not forget about the Sephardic shul & Kollel planning to build a new 400+ seat building with no parking across the street right next to his James/Sunset intersection. That’ll really help the traffic mess, I’m sure.
It’s pathetic that our committeemen abandon us by not fixing rules which allow applicants to play games. But it’s about time that crazy applications are no longer get everything approved in this town!
So the "Sephardic shul & Kollel planning to build a new 400+ seat building with no parking across the street right next to his James/Sunset intersection" is ok, but 1 residential driveway will cause "havoc".
We should be protesting 400+ seats with no parking, not a simple person trying to make a driveway. The answer is purely that you can not "fargin" that someone should profit a few dollars on his property.
Anon 1:57 apparently missed the point. He also clearly cannot "fargin" the neighborhood. He would prefer that one individual's profit take precedence over all else, no matter how ridiculously situated his driveway would be and no matter how much of a traffic/safety headache it would cause for the rest of society.
He wants to remain deaf to what was clearly stated at the public hearing by the planning board and blind to what everyone else sees -- that it's crazy to add an active driveway right at the James/Sunset intersection. Anyone not blinded by the desire to make $$$ at the expense of the public's safety understands the havoc this will cause. He can have his driveway on Independence Ct away from the already busy -- and soon to be much busier -- James St. But sadly, that's not enough for this guy. HE WANTS EVERYTHING!
Well, it's too bad for him! There is a more important consideration at hand - whether the plaintiff developer chooses to ignore it or not. Spoiled people don't always get whatever they demand.
AND all this is WITHOUT EVEN CONSIDERING the insane application by Sunset Sephardic Cong to build a new 400+ seat building with no parking, right next to his James/Sunset intersection. They're making some ludicrous claim that all the shul goers and Kollel students will park in the James St shopping mall and walk all the way over to the new shul. Of course, we all know that it's baloney and they'll be driving to/from the new building, parking all along Sunset Rd, making unsafe U-turns, and hugging the street corners - as they've been doing up until now. So, this extra traffic, IF APPROVED, will make things much worse.
So, the only thing that anon 1:57 is correct about is that we should be protesting the Sephardic Rabbi's building plans and demand that he submit a normal application with a normal on-site parking plan. Either that or have a few different Sephardi shuls throughout the area. They don't all have to squeeze into one lot, which is obviously too small for the amount of Shul and Kollel traffic expected. His parking plan is nothing more than a joke.
But, regardless of the Sephardic application, it is beyond clear that the driveway must be relocated off James St onto Independence Ct. Public safety comes before anything or anyone else!
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