Ocean County Superior Court Assignment Judge Francis Hodgson today set a trial date for Yanky Lipshitz's lawsuit which seeks to overturn the the Lakewood Planning Board's denial of his Chestnut Street application.
Lakewood Planning Board Attorney John Jackson's recklessness (i.e collusion) resulted in the filing of this lawsuit.
As first reported here on FAA News, back in May 2023, in response to heavy opposition from the neighbors, the Planning Board denied Applicable SD 2553 to construct 13 duplex structures (26 houses plus basement apartments) on a new cul-de-sac bulb off of Chestnut Street, across from Evergreen Avenue.
The application was submitted by Chestnut Holdings which is owned by Jacob Lipshitz and Hersh Eissenberg.
As more clearly explained here on FAA News, although the applicant's professionals asserted that the application did not require any variances, the Planning Board reinterpreted the Township's Open Space Ordinance to count basement apartments as a separate unit. Based on this new interpretation, the Board found that the Chestnut Holdings application did not comply with this Ordinance. The Board declined to grant a design waiver to provide relief from providing the required Open Space, and thus denied the application.
Subsequently, on June 20, 2023, the Board adopted the Resolution of Denial which was drafted by the Board Attorney.
The Resolution was written extremely sloppy (i.e. reckless/collusive).
First the Resolution appears to indicate that under their new interpretation of the Open Space Ordinance, the application does not comply with the Ordinance:
The Board asked about whether the Open Space Ordinance defines unit and expressed concern regarding the lack of space for a playground or recreational space for the units. Mr. Flannery stated that the ordinance has been interpreted to mean, for example, 28 lots is 28 units, irrespective of basement units, since 1979. The Board said that if there are different families that are going to reside in the basement units, then 56 units must be considered when applying this Ordinance. The board confirmed their interpretation that a basement apartment, by definition, is a separate unit.
Then the Resolution does a 180° and contends that the application is conforming!
The Resolution 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 public safety concerns
regarding traffic flow and the lack community facilities or recreational space, with
the substantial proposed density particularly in light of the basement apartments
noted on the plans. 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 preliminary and
final subdivision approval.
The massive issue with this wording is that it throws away everything that the Board accomplished by reinterpreting the Open Space Ordinance - which was that the application was able to found to be non-conforming!
This created a massive lawsuit risk, as it's extremely easy to file a lawsuit against the Board when they deny a "fully conforming" application.
In fact, as previously reported here on FAA News, a mere 7 days after the Board adopted their Resolution of Denial, the developers, represented by Attorney Adam Pfeffer Esq. filed a lawsuit seeking to overturn the Board's denial.
The Complaint in Lieu of Prerogative Writs, filed in New Jersey Superior Court in Ocean County, argues that the application was properly noticed and published in compliance with the MLUL, and that it 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, therefore, the Board's decision to deny the application was "against the weight of the testimony presented at the hearings and is therefore arbitrary, capricious, and unreasonable."
"During the course of the public hearings, the plaintiff introduced testimony from its
engineer/planner who testified that the proposed duplex structures are a permissible use of the
Premises within in HD-7 Highway Development Zoning District, and that no variances were
required, and none were sought.
"Notwithstanding the fact that Plaintiff’s application was “as-right” the Planning
Board adopted a resolution of denial on June 20, 2023.
"The resolution of denial of the Planning Board is arbitrary, unreasonable and
capricious in that the plaintiff complied in all respects with the zoning requirements set forth in
the HD-7 Highway Development Zoning District, and otherwise meet all conditions of the
Lakewood Township zoning land use ordinances.
"Accordingly, the Planning Board did not have the authority to deny Plaintiff’s application for Preliminary and Final Major Subdivision Approval pursuant to PRB Enterprises, Inc. v. South Brunswick Planning Board, 105 N.J. 1 (1987) and its progeny," the Complaint argues.
The suit further contends that the Resolution of Denial contains insufficient conclusions of law and findings of fact not based on those presented at the hearing, which is a violation of N.J.S.A. 40:55D-10(g).
N.J.S.A. 40:55-10(g) requires that the Board make “findings of fact and conclusions based thereon.” Subsection 2 requires same be set forth in a memorializing resolution.
"Neither of these conclusions are representative of the testimony provided at the
hearing. At no time did the Board question any expert regarding safety concerns. In fact,
the Resolution itself is devoid of any findings of facts on the record which speak to health
and safety concerns upon which the Board could have drawn its conclusion.
"As such, the Resolution is both deficient and contradictory to the testimony set forth on the record and in violation of N.J.S.A. 40:55D-10(g)," the Complaint states.
The Complaint in Lieu of Prerogative Writs, filed in New Jersey Superior Court in Ocean County requests judgment declaring the Resolution of Denial to be arbitrary, unreasonable and capricious, and void as a matter of law, and compelling the Planning Board to adopt a positive Resolution of Approval to approve the Plaintiff’s Application for Preliminary and Final Major Subdivision Approval.
The Complaint further seeks judgement awarding plaintiff attorneys’ fees and costs of suit, as well as for such other and further relief as may be just.
Planning Board Attorney John Jackson Esq. has filed an Answer to the Complaint, denying all allegations and demanding that the Plaintiff’s Complaint be dismissed with prejudice and defendants be awarded attorney’s fees, costs of suit and such other relief as the Court may deem fair, equitable and just.
In a pre-trial memo just as submitted to the Court, Mr. Jackson asserts that "all meetings conducted by the Planning Board were undertaken in full conformance with the provisions of
the New Jersey Open Public Meetings Act and the Municipal Land Use Law.
The denial of plaintiff’s application,
resulting in the Resolution of denial memorialized for SD#2553 on June 20, 2023, was
proper and should be affirmed."
Mr. Pfeffer wrote to the Court that his client is seeking his legal fees, which, to date alone have totaled $10,489.75.
At a Case Management Conference held today, Judge Hodgson scheduled the trial on this matter to be held on Thursday, December 7, 2023. Trial Briefs will need to be submitted prior to the trial.
The Planning Board has a terrible record in court regarding "fully conforming application" lawsuits.
As previously reported here on FAA News, back in May, Judge Hodgson overturned the Planning Board's denial of Joseph Bitton's fully conforming application on East 8th Street because he refused to install a full-sized cul-de-sac bulb on the long and narrow road, which is not required, in this particular case, by local or state laws.
Judge Hodgson rung his hands up in the air, explaining 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.
As previously reported here on FAA News, Judge Hodgson again rung his hands up in the air when he overturned the Board's denial of Franklin Shapiro's application to subdivide the rear yard of 30 Independence Court into a second lot, explaining 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.
As previously reported here on FAA News, despite this Court Order, citing heightened safety concerns, the Board vehemently stood their ground and conditioned their "approval on remand" in accordance with the applicant's earlier concession to eliminate the driveway from James Street and instead provide for a driveway easement from the end of Independence Court along the property line to access the rear.
The very next day, as previously reported here on FAA News, Mr. Pfeffer ran right back to court to continue fighting the Board to approve the driveway on James Street. Judge Hodgson has scheduled a conference on the matter to be held this Thursday, August 31, 2023.
As previously reported here on FAA News, Judge Craig Wellerson denied Solomon Halpern of Besadar Holdings' petition to outright overturn the Planning Board's denial of his "mostly conforming" application for 9 new single family homes on a cul-de-sac road along the southwest side of Fourteenth Street, southeast of Curtis Lane. However, Judge Wellerson did rule that the Board's Resolution of Denial does not comply with Statutory regulations and therefore, the Board needs to write a new Resolution that more clearly explains the Board's legal basis for denying the application. Judge Wellerson gave the Board 45 days to adopt a new Resolution.
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