Ocean County Superior Court Assignment Judge Francis Hodgson has just scheduled a trial date on a lawsuit which seeks to overturn the Lakewood Zoning Board's (second) denial to lift the age-restriction on future apartment buildings in Covington Village, FAA News has learned.
The litigation is gearing up as the Zoning Board is alleging that the Plaintiff lacks standing as they no longer own the property, and that the lawsuit is frivolous - an argument upon which, if they prevail, the Board may be entitled to recoup its legal fees.
Covington Village, off Locust Street, is bordered by Belz / Locust Grove and another senior living development, Harrogate.
Over 15 years ago, the development was originally approved by the Planning Board as 12 buildings with 30 age-restricted units in each building. Congregate housing is conditionally permitted in this zoning district but only with an age restriction.
The Planning Board additionally required the developer to place a deed restriction on the property that it is age restricted.
The developers went bankrupt after building only 7 buildings (210 apartments).
Subsequently, the project was purchased by Developer Cary Tajfel.
On September 19, 2019 Mr. Tajfel presented an application to the Lakewood Zoning Board to build the remaining 5 buildings (150 apartments) with no age restriction. He further sought a subdivision to separate the 2 developments.
Many residents of the adjacent Belz communities were opposed to the plan which would have added many families and associated traffic to this already busy area.
The Board denied the application, with some members opining that they disliked any lifting of the age restriction and some members opining that they mainly disliked the plan for so many apartments and not enough parking and lack of recreational open space.
On February 11, 2020 Mr. Tajfel submitted to the Board a new application with a revised plan of 4 buildings with 35 apartments in each, and a 5th lot for recreation.
After the Board received over 200 letters of opposition, Mr. Tajfel withdrew the application.
Mr. Tajfel returned to the Zoning Board in February 2022 with a revised plan that included completely separating the project entrances and exits, which was accomplished by widening the existing driveways and designating one for each development. The plan was also revised to remove parking in the new development adjacent to the clubhouse to add green space. The plans also converted the eliminated building into a recreational area with a courtyard pavilion featuring a putting green, a bocce court and a dog park.
The application sought 3 separate approvals: 1) Minor Subdivision approval to subdivide the new development from the existing development, 2) Site Plan approval for the new development, 3) Conditional Use Variance relief to waive the age restriction.
Ultimately, after multiple hearings on the application, a majority of the Zoning Board members stated that they disagreed with the developers' market analysis and they felt that there still is a strong market in Lakewood for senior housing apartments. Board members also expressed safety concerns as the school aged children would need to walk all the way to Locust Street as buses would not fit in the new development.
The Board took one vote on the application. A motion to approve was offered. That motion failed, ultimately denying the application.
As first reported here on FAA News, back in April 2022, the Covington Village Homeowners Association, represented by Red Bank Attorney Matthew Fiorovanti Esq. filed a Complaint in Lieu of Prerogative Writs asking the New Jersey Superior Court in Ocean County to overturn the Zoning Board denial.
The New Jersey Municipal Land Use Law provides (NJSA 40:55D-10(g) that "the municipal agency shall include findings of fact and conclusions based thereon in each decision on any application for development and shall reduce the decision to writing."
The lawsuit asserted that the Zoning Board's resolution failed to comply with this Statue as it does not set forth any finding of conclusion of law of any kind to support the denial, it merely states that "Board members offered a motion to approve. The motion failed to receive the 5 votes necessary for a Use Variance, resulting in a denial of the application."
"No findings of any kind are set forth in the Resolution to support the denial or to satisfy a reviewing Court that the Board analyzed Plaintiff's request in accordance with the MLUL and in light of the Township's Master Plan and zoning ordinances. The Resolution does not contain any such conclusion of law for the simple reason that the Board did not engage in any legal analysis... The Resolution is utterly deficient under the applicable law... The Resolution fails to satisfy the minimum requirements under the MLUL and governing case law, and as a result the denial of the Application should be vacated in its entirety," the lawsuit stated.
The lawsuit further claimed that the Board acted unfairly in its proceedings and denial of the application by failing to properly analyze the merits of the application, which is required before a Board can deny an application.
As previously reported here on FAA News, Judge Marlene Ford partially remanded the matter back to the Board, noting that while the Board did one single vote on the entire application, there were technically three separate applications which were; 1) Conditional Use Variance relief to lift the age-restriction; 2) Minor Subdivision and; 3) Preliminary & Final Major Site Plan with Bulk Variance relief which included a Minimum Accessory Building Side Yard Setback variance of 8.9 feet where 10 feet is required, and a variance for a proposed eight foot vinyl fence, where the ordinance limits fence heights to six feet.
Saying that the Board should have done separate votes on the three applications, and because the Minor Subdivision was fully conforming and the variances on the Site Plan were de-minimus, Judge Ford overturned the Board's denial of the Minor Subdivision and Site Plan.
Regarding the Conditional Use Variance relief to lift the age-restriction, Judge Ford said that the Board's Resolution is "a bit unusual" at it "fails to state why the Board found troublesome about the application and their conclusions of law which ultimately led to their failure to approve the application."
As such, Judge Ford remanded the matter back to the Board for them to reconsider the age restriction lifting request, and then vote, either to deny it or approve it, and then adopt a resolution properly setting forth the reasons and justifications for the denial or approval.
In consideration of this decision, as previously reported here on FAA News, back in February 2023 the Board reconsidered the age restriction lifting request, and ultimately, the Board voted, 5-2, to deny the application.
As previously reported here on FAA News, following this second denial, the Covington Village Homeowners Association have filed a new Complaint in Lieu of Prerogative Writs in New Jersey Superior Court in Ocean County seeking to overturn the Board's denial.
The 2-count lawsuit alleges that "the Board’s denial of the remanded application for a conditional use variance to
waive the age restriction, as memorialized in the Second Resolution, was arbitrary, capricious and
unreasonable, and contrary to law.
The Board failed to engage in any deliberative fact-finding or perform the required
legal analysis to determine whether Plaintiff has satisfied the criteria for the conditional use
variance relief under the standard articulated by Judge Ford. Specifically, the Board failed to engage in any analysis whatsoever with regard to
whether Plaintiff satisfied the modified positive and negative criteria applicable to a conditional
use variance application under the MLUL and governing case law and as specifically found by
Judge Ford.
In fact, despite the fact that Judge Ford had explicitly clarified the appropriate
standard to be applied by the Board in considering the conditional use variance application, the
Board did not cite, let alone properly apply, the governing standard.
"Had the Board properly applied the governing legal standard to the substantial and uncontroverted evidence presented by Plaintiff in support of the Application, the Board should
have concluded that Plaintiff has satisfied its right for conditional use variance approval.
The Board’s denial of the remanded application for a conditional use variance to
waive the age restriction, without providing any factual or legal support or even referencing the
applicable standards, and in direct contravention of the substantial and uncontroverted evidence
presented by Plaintiff, was arbitrary, capricious and unreasonable, and contrary to law."
In the second count, the lawsuit alleges that "New Jersey law requires that the findings of fact and legal conclusions of the board, acting as a body, must be reduced to writing, separate and apart from the informal verbalizations of the individual board members’ transitory thoughts, and therefore, the Board's second Resolution of Denial "is once again deficient as a matter of law, as it fails to set forth the Board’s findings or facts or conclusions of law in support of the Board’s denial based on the standard set forth by Judge Ford in remanding the application to the Board. The Second Resolution does not cite, let alone explain, how Plaintiff did not satisfy the applicable conditional use variance standard. Instead, like the First Resolution, found to be deficient by Judge Ford, the Second Resolution simply recounts the votes of the members without further explanation."
"
As a result, the denial of the remanded application for a conditional
use variance to waive the age restriction should be vacated in its entirety, and judgment should be entered against Defendant as follows:
a. Reversing the action of the Board denying Plaintiff’s remanded application for a
conditional use variance to waive the age restriction;
b. Declaring that the Second Resolution is null and void;
c. Directing the Board to immediately adopt a resolution granting Plaintiff’s application
for a conditional use variance to waive the age restriction in its entirety;
d. For attorney’s fees and costs of suit; and
e. For such other relief as may be just and equitable.
Zoning Board Attorney Jerry Dasti Esq. filed an Answer denying all allegations, including that the Board acted arbitrarily, capricious, and unreasonable.
Additionally, the Board is asserting that the Homeowners Association has no standing to bring this litigation as they no longer own the property of the subject application (as Carey Tajfel now owns it).
The Board is therefore alleging that the lawsuit is frivolous and must be dismissed and the Board is entitled to recoup their legal fees.
As the litigation continues to gear up, at a pre-trial management conference held on Thursday, Judge Hodgson scheduled the trial to be held on Monday, December 4, 2023. Both parties will need to submit trial briefs prior to the trial date.
As previously reported here on FAA News, while the litigation remains pending in Superior Court, the developers of Covington Village have commenced construction on one residential apartment building.
This is permitted as the Court-remand did approve the application as to the Site Plan and Subdivision. Therefore these buildings may now be constructed (with the age restriction in place) while the litigation over the lifting of the age restriction continues in court.
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