After some haggling, including in court and Beis Din, Joseph Bitton has settled with Yitzchok Greenwald regarding the property at 42-50 East 8th Street, and has just closed on the $1,176,000 purchase of the parcel, FAA News has confirmed.
Ocean County Superior Court Assignment Judge Francis Hodgson previously overturned the Lakewood Planning Board's denial of Mr. Bitton's application on this site because he refused to install a full-sized cul-de-sac bulb on the long and narrow road.
Judge Hodgson explained that despite the neighbors concerns for fire trucks safety on the block, he is forced to overturn this denial because 1) the Township Committee never adopted an Ordinance requiring full-sized cul-de-sac bulbs on this road and, 2) the Board of Fire Commissioners approved this application even without a full-sized cul-de-sac bulb.
Back in 2014, the Planning Board approved a row of houses along East 8th Street. At the urging of the then-Board of Fire Commissioners, the Planning Board stipulated that the developers build a turn-around at the end of block. During Resolution Compliance, the Board Engineer mysteriously turned a blind eye to this stipulation, and permitted the homes to get built despite there being no provision for the required turn-around, hence there is still no turn-around on this road.
In June 2021, Joseph Bitton presented to the Planning Board a new application to build 6 duplex houses on the other side of East 8th Street on the site of the former Greenwald Caterers commercial kitchen.
The application did not include provisions for any turn-around at the East 8th Street terminus which has frontage along this property.
The tract of land contains about 30,000 sq feet of land and it is located in the R-M, Multi-Family Residential Zone District which permits Duplex Housing on lots of 10,000 sq feet. The application sought variances of Minimum Lot Area as well as Minimum Rear Yard Setback for some of the lots.
In the engineer's review letter provided prior to the Public Hearing, Board Engineer Terry Vogt noted to the Board that there is no turnaround at the terminus of Eighth Street and that "there appears to be room to install a turnaround in the existing pavement." Mr. Vogt recommended as well that the applicant solicit input from the Township's Department of Public Works and the Police Department's Traffic Safety Unit "regarding the need for a turnaround."
At the Board hearing, many neighbors on the narrow and long block took to the podium to demand that the Planning Board not grant approval for these duplexes unless Mr. Bitton provides a full-size cul-de-sac bulb, noting that there were 2 fires on the block over the past few years and it was practically impossible for emergency vehicles to get in and out of the block safely.
In response, Graham MacFarlane, the developers' engineer testified that the New Jersey Residential Site Improvements Standard (RSIS) which governs the rules for cul-de-sac bulbs does not require a proper cul-de-sac bulb in this case because most of the road was developed prior to enactment of the RSIS in 1993. Additionally, despite that this is the Multi-family zoning district, there is no Township Ordinance specifically requiring a full-sized cul-de-sac bulb in this area.
Despite this testimony, - due to intense pressure from the neighbors, - the Planning Board denied the application, instead sending the developers back to the drawing board to provide for a proper cul-de-sac bulb.
As this application sought variances, Mr. Bitton had no legal recourse against the Board.
In September 2021, Mr. Bitton returned to the Board seeking for a "reconsideration" of his previous denial, on the basis that he could have proposed another Site Plan which was "fully conforming" but he felt that the plan (with its variances) which was previously denied was a "better planning alternative."
The "fully conforming" plan included an undersized 20 foot wide by 30 foot deep hammerhead turnaround.
Engineer Graham MacFarlane testified to the Board that this undersized turn-around was the best they could provide unless they replaced one duplex structure with a single family home, which, ironically is not a permitted use under the Township's zoning ordinances for this "Multi-Family zone" and therefore a Single Family Home would require a Use Variance from the Zoning Board.
"Slight issue" with this "fully conforming" application was that the Board Engineer calculated that although the alternative plan did indeed eliminate the minimum lot area variance, the minimum rear yard setback variances still remained and it was therefore not "fully conforming."
Additionally, the Board Engineer calculated that instead of lying fully within the public right-of-way, the proposed hammerhead turnaround will encroach onto one of the duplex lots and will require an easement to the Township in order to be proposed for public use.
The Board reiterated that they wanted to see a full-size cul-de-sac bulb, and denied Mr. Bitton's "request for reconsideration." The Board also reminded Mr. Bitton to solicit input from the Police Department's Traffic Safety Unit and Fire Chief regarding the need for a turnaround.
Eventually, in April 2022, Mr. Bitton returned to the Board "fully armed." His engineer Graham MacFarlane presented an application for the same 6 duplex units with a plan to provide either a hammer-head turn-around or an undersized cul-de-sac bulb, testifying that either proposal is fully compliant with both township and state standards, even though school buses can only turn-around on full sized cul-de-sacs.
Mr. MacFarlane testified to the Planning Board that the Fire Chief and Police Department's Traffic Safety Unit reviewed the plans; the fire chief stated no preference between a hammer-head turn-around or an undersized cul-de-sac as long as No Parking signs were posted, the Police Department's Traffic Safety Unit stated a preference for an undersized cul-de-sac as there is less illegal parking on undersized cul-de-sac bulbs.
Mr. MacFarlane further testified that this was finally a variance - free application and therefore it should be approved by-right.
Citing these nods of approval from the Township officials, Board Engineer Terry Vogt urged the Board to "settle the matter" and approve the application with either a hammer-head turn-around or an undersized cul-de-sac.
The neighbors again took to the podium to demand that the Planning Board not grant approval for additional duplexes unless Mr. Bitton provides a proper cul-de-sac bulb.
Due to continued urging of the neighbors, the Planning Board again stood their ground, - despite dire warnings of its own professionals - and denied the application.
On May 24, 2022 the Board adopted its Resolution of Denial which states:
"While the application represented a conforming subdivision, it is the duty of the planning board to weigh the evidence and to exercise its discretion in the event of significant concerns on the board of the board.
"The Board ultimately rejected the application on the basis of significant traffic safety concerns regarding the lack of a full-sized cul-de-sac to provide adequate safety in this neighborhood.
"The Board found that an approval of this application would have significant detrimental effects on the safety of the neighborhood.
"The Board finds that the applicant’s proposal does not further the purposes of zoning pursuant to N.J.S. 40:55D-2:
1. The applicant’s proposal is not the best planning alternative.
2. The proposed development would not secure safety from fire, flood, panic and other natural and man-made disasters.
"Accordingly, the Board hereby denies the applicant’s request for major subdivision approval."
At the time of the Planning Board application, the property was still owned by Catering by Greenwald, Inc, which is registered to Yitzchok Greenwald.
At some point in 2022, Mr. Bitton entered into negotiations to purchase the property from Mr. Greenwald.
The Parties agreed upon a final purchase price for the property in the amount of $1,850,000; with a deposit of $419,000 to be paid up front prior to executing a final written agreement for the sale of the Property, and with certain amounts to be paid prior to the closing of title on the Property, other amounts to be due at the closing of title on the Property, and the remaining balance to be paid at a later date.
The parties formally entered into a written contract for the sale on July 18, 2022, after Mr. Bitton already paid the $419,000 deposit.
The contract includes a clause wherein the seller represented that he had not made any other contract related to the sale of the Property to anyone else.
The Contract for Sale was not contingent upon Mr. Bitton's ability to obtain mortgage financing, as Mr. Greenwald was aware that Mr. Bitton would be obtaining the balance of the purchase price for the property from private lenders.
On August 15, 2022, the parties agreed that the closing of title would be done 10 days later on August 25, 2022.
Suddenly, on August 22, 2022, just 3 days prior to the scheduled closing, Mr. Greenwald notified Mr. Bitton that he would not be closing on the sale. Mr. Greenwald refused to give any explanation for this sudden change of heart. He also did not return the $419,000 deposit he already received despite failing to move forward with the closing of title on the property.
Pursuant to the Contract Agreement, any disputes in the matter were to be adjudicated before Bais Din Maysharim. Accordingly, Mr. Bitton sent Mr. Greenwald a hazmanah to adjudicate the matter before Bais Din Maysharim.
On December 2, 2022, after Mr. Greenwald continued to refuse to appear before Bais Din to adjudicate the dispute, Mr. Bitton, represented by Iselin Attorneys Gary S. Snitow and Brian M. Jeffers, Esq. filed a civil lawsuit in New Jersey Superior Court in Ocean County.
Specifically, the lawsuit asserts that "Plaintiff identified the Property as an ideal location for housing for students of the Kollel, an institute for advanced Talmudic studies."
The 5-count Complaint alleged that:
On October 7, 2022, Mr. Greenwald in his capacity as member/manager of Catering by Greenwald, Inc. transferred title to the Property to an entity known as 40-52 Eighth Street, LLC, a corporation that he formed on September 22, 2022.
Mr. Greenwald facilitated the creation of
40-52 Eighth Street, LLC, and the transfer of title to the Property in an effort to deny Mr. Bitton the
benefit of the bargain of the Contract for Sale.
Mr. Greenwald concealed the transfer of title from Mr. Bitton. Furthermore, he transferred title to the Property with knowledge that Mr. Greenwald was the equitable owner of the Property.
In doing this transfer, Mr. Greenwald violated the terms of the Contract for Sale which prohibits making any other contract related to the sale of the Property to anyone else.
Mr. Greenwald's conduct demonstrates evidence that he executed the Contract for Sale with knowledge that they never intended to transfer title for the Property to Mr. Bitton. Yet, at the same time, Mr. Greenwald has retained the $419,000 deposit.
Defendants’ breach has caused Plaintiff harm in the form of lost business opportunity, loss of goodwill within the community, and increased costs for labor, equipment, and materials to complete construction of the kollel based on the time value of money.
The suit demanded judgment for
compensatory damages, court costs, attorneys’ fees and such further relief as the Court deems
equitable and just.
Contemporaneous with the filing of the lawsuit, Mr. Bitton also filed a Notice of Lis Pendens with the Ocean County Clerk’s office to preserve his equitable title to the Property and let potential buyers know of his right in the same.
Mr. Greenwald was represented in this litigation by Attorney Jerry Dasti Esq.
Subsequently, in March 2023, the parties agreed to adjudicate their claims in Bais Din.
The matter has now been settled and the parties have just closed on the $1,176,000 sale.
As first reported here on FAA News, on July 8, 2022, following the Planning Board's denial of his application, Mr. Bitton filed a lawsuit seeking to overturn the Board's denial.
The Complaint in Lieu of Prerogative Writs filed by Attorney Adam Pfeffer Esq. in New Jersey Superior Court in Ocean County, argues that the application was a permitted use in the zone and variance-free, thereby making it a by-right application, and therefore the Board's denial of the application was "arbitrary, unreasonable, and capricious," and therefore the denial should be overturned.
As previously reported here on FAA News, Judge Hodgson agreed and overturned the Board's denial.
Judge Hodgson noted that "despite that the Township Committee has designated this block as part of the R-M Multi-family housing district, there is no Township Ordinance which specifically requires a full-sized cul-de-sac bulb in this area."
Judge Hodgson additionally stated that "absent a specific Township Ordinance, the New Jersey Residential Site Improvement Standards (RSIS) would govern, and RSIS guidelines clearly state that the Planning Board can only require a full-sized cul-de-sac bulb if the Board of Fire Commissioners states that one is necessary so fire trucks can properly turn around. In this case, despite that there already have been multiple big fires on the block, the Board of Fire Commissioners had no concerns with the application as presented and they did not require a full-sized cul-de-sac bulb, and therefore the Planning Board lacked jurisdiction to require it."
As the Planning Board has now been forced to adopt a Resolution approving the application, and the land sale having been closed on, those hard-fought duplexes are not too far off.
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3 comments:
What kind of useless members sit on our Township Committee? They definitely can't complain about their outsized paychecks for not doing their jobs to care for the residents and their infrastructure needs.
Why have they refused to implement common sense rules to require full-sized cul-de-sac bulbs on narrow roads full of duplexes and cars, like East 8th Street? And especially since there have been multiple events over the years of large fires on the block!
What have been spending their time smoking while our town goes to pot with callous developers that get a free pass to destroy and endanger neighborhoods? Even the Judge was surprised that the governing body is abandoning their residents like this. But there’s nothing the courts can do to help us, if our own elected officials could care less about fixing the broken rules.
And the Board of Fire Commissioners is another sad parsha. Ever since certain unzere took the place over, they bend over backwards to help the developers get whatever they want (and at whatever cost the taxpayers have to pay) by just rubberstamping their applications without any diligent inquiry into the safety concerns that are readily apparent, if they would just open their eyes.
It’s also no coincidence that this developer, who is represented by Adam Pfeffer, was able to get his “approvals” from the fire commissioners who are represented by Adam’s law firm partner, Ian Goldman.
The property should have sod for at least twice that amount, based on six duplexes.
Nobody is forcing anyone to buy
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