Bais Yaakov of Jackson has just responded to a lawsuit filed in New Jersey Superior Court in Ocean County which seeks to overturn Jackson Township Planning Board's approval of Bais Yaakov of Jackson's Site Plan application for a 4-building school campus on East Veterans Highway.
The lawsuit alleges that Board Chairman Tzvi Herman failed to recuse himself from the application, notwithstanding the fact that he attends a shul, and has served on its Board, at 146 South New Prospect Road, that is represented by Donna Jennings Esq., the very same attorney representing Bais Yaakov of Jackson's Site Plan application. Neither the Chairman, nor Ms. Jennings, revealed this disqualifying conflict prior to the hearing.
The lawsuit additionally alleges that Chairman Herman operates a magazine wherein he has made comments regarding the positive development of private religious schools being approved, demonstrating a clear bias in their favor. In spite of such bias, the Chairman failed to recuse himself.
As the news was very first broken here https://www.faanews.com/2022/11/breaking-jacksons-royal-grove-neighbors.html on FAA News, back in November 2022, after they learned of the submission of the Site Plan application, neighbors of Bais Yaakov of Jackson's property - who have concerns regarding traffic congestion, privacy, and regarding the septic system of such a scope close to their property - held a meeting in a local shul with Mr. Aron Rottenberg, a representative of the school.
Mr. Rottenberg informed the neighbors that the school will not be a "new school for Jackson children," but rather that the existing Lakewood children will move to the new location in Jackson.
Neighbors asked if he can guarantee that their children will be able to get into the new school in exchange for them not opposing construction of the school in their neighborhood. Mr. Rottenberg immediately responded, "no way - you're not welcome in this school."
The neighbors tried to impress upon Mr. Rottenberg their concerns and they asked him to commit to planting proper trees and installing high fences. Mr. Rottenberg responded, "I won't agree here to do anything. You're welcome to fight me at the Township boards."
In response, the neighbors retained Brick Township Attorney Joseph Michelini Esq. of O'Malley, Surman, and Michelini to represent their opposition to the application.
The Site Plan depicts an elementary school building that can contain 1,350 students, two high school buildings that can contain 500 students in each, and an additional 9,800 sq feet gymnasium building.
The architectural floor plans indicate that each school building will contain two stories and no basements. There doesn't seem to be any main dining area, rather each floor contains a smaller "multi-purpose room."
At the Board's first public hearing on the application, Mr. Michelini asked if the numerous "multi-purpose rooms" on each floor which have separate entrances and lobbies, as well as the gym building, would be turned into rentable banquet halls.
Mr. Rottenberg stated "no."
Noting that placement of a restrictive covenant would allow the neighbors to sue in court if they do indeed operate a banquet hall, Mr. Michelini then asked if he would be willing to place a restrictive covenant on the property that it can not be used for a rental hall. Mr. Rottenberg vehemently objected.
Mr. Michelini then asked if The Cheder's Lakewood schools have banquet halls and if yes, do those halls have Township approval.
Mr. Rottenberg responded that most of them do have halls and they all have proper Township approval for the halls.
(Curiously, when the Lakewood Cheder presented their Site Plan and architectural plans to the Lakewood Township Planning Board, they depicted "open recreational space" which was then turned into two banquet halls. Lakewood Township never granted any Certificate of Occupancy for these banquet halls.
Additionally, when Beis Faiga's Gratter Building expansion presented their Site Plan and architectural plans to the Lakewood Township Planning Board, they depicted an "auditorium" which Mr. Rottenberg solemnly affirmed "will not be rented out." Lakewood Township also never granted any Certificate of Occupancy for this banquet hall.)
In contrast to what Mr. Rottenberg told the neighbors, Bais Faiga Administrator Rabbi Yosef Posen told the Board that currently, 457 students are bussed daily from Jackson to Bais Faiga, and this new school located in Jackson Township will eliminate long bus rides from Jackson to Lakewood.
Despite the neighbors' objections, as previously reported here https://www.faanews.com/2023/03/breaking-news-jackson-planning-board.html on FAA News, back in March 2023, Jackson Township's Planning Board unanimously gave their approval to Bais Yaakov of Jackson's Site Plan application for a 4-building school campus on East Veterans Highway.
The parking lot, which will be accessed by two driveways on East Veterans Highway, will contain a bus lane which will be able to fit 8 buses in front of two of the school buildings and 9 buses in front of one of the school buildings. A total of 503 parking spaces are required under Jackson's zoning ordinances.
The Site Plan "technically contains" 503 parking spaces as required, however, 136 of these spaces will be "land banked / recreational area" which means that they will be used mainly for a recreational area and not actual parking.
The school's professionals agreed that annually, Township zoning officials can review the parking lot and if they determine that additional parking is required, then at that point the land banked area will be paved into parking spaces.
Bais Yaakov of Jackson's application was represented by Attorney Donna Jennings of Wilentz, Goldman & Spitzer, P.A, Engineer Ian Borden of PDS Engineering, Traffic Engineer John Rea of McDonough and Rea Associates, and Architect Melissa Mermelstein, Senior Architect employed at BF Design and Associates.
At one point during his cross-examination of the school's architect, Attorney Michelini stated that he was being shut down by Board Attorney Bobby Shea Jr. and this is grounds for an appeal of this approval (in Superior Court).
Following the Board's approval of the application as well as adoption and publication of their Resolution of Approval, as previously reported here https://www.faanews.com/2023/07/first-report-lawsuit-filed-seeking-to.html, back in July, the neighbors, represented by Mr. Michelini, have just now filed a lawsuit seeking to overturn the Board's approval.
According to the Complaint in Lieu of Prerogative Writs:
The Board palpably abused its discretion and acted in an arbitrary, capricious and unreasonable manner when it approved the Site Plan application.
The Board palpably abused its discretionary authority by approving the Site Plan application with a variance to allow the "green banking" of 136 parking spaces of the 503 spaces required for the application.
The testimony provided by the applicant's experts regarding the parking variance did not conclusively establish that any strict application of the Jackson zoning ordinance would impose any undue hardship on the property beyond the applicant's self-created hardship, failing to satisfy the positive criteria required under the MLUL.
The testimony did not conclusively establish that the purposes of the MLUL would be advanced by the requested deviation from the requirements of the zoning ordinance, and that the benefit of the deviation would substantially outweigh any alleged detriment, thus failing to satisfy the positive criteria required under the MLUL.
The testimony similarly to conclusively establish that the parking variance could be granted without substantial detriment to the public good and that they would not substantially impair the intent and purpose of the zone plan or zoning ordinance, failing to satisfy the negative criteria required under the MLUL.
The Board's action was substantively and/or procedurally deficient in numerous other respects including, but not limited to the following:
a) the property can not reasonably accommodate the proposed use given its shear scope and size and impact on the neighborhood;
b) the Resolution of Approval fails to set forth findings of fact in support of its conclusions and instead merely states an incomplete summary of the testimony of the applicants and the objectors and conclusory legal findings;
c) The Board, its Chairman, and its legal counsel, demonstrated bias and/or a lack of due process toward the objectors and were otherwise arbitrary, capricious, and unreasonable in numerous respects, including the following:
i) repeatedly interrupting and cutting off the questioning of the objectors' counsel;
ii) inappropriately reopening the public portion after it had been closed;
iii) the Chairman, Tzvi Herman, failed to recuse himself from the application, notwithstanding the fact that he attends a shul, and has served on its Board, at 146 South New Prospect Road, that is currently and was at the time, represented by Donna Jennings Esq., the very same attorney representing the applicant in this matter. Neither the Chairman, nor Ms. Jennings, revealed this disqualifying conflict prior to the hearing;
iv) The Board Chairman operates a magazine wherein he has made comments regarding the positive development of private religious schools being approved, demonstrating a clear bias in their favor. In spite of such bias, the Chairman failed to recuse himself;
v) the Board considered the application notwithstanding the fact that the school's traffic engineer failed to submit a design for a required traffic signal and substantial roadway improvements 10 days prior to the hearing in this matter. Traffic into and out of the site is a major concern of the objectors given the size and scope of the project.
vi) The Traffic Engineer relied upon, and the Board accepted, Aaron Rottenberg's estimates of bus traffic, which are inherently bias in favor of the applicant, rather than relying upon the objective standards for bus traffic into and out of the site, such as that provided for schools by the Institute of Traffic Engineers;
vii) The Board ignored the fact that the property was misrepresented by the applicant's professional planner as having only "Rank 3" habitat per New Jersey DEP guidelines, and contained no endangered or threatened species when the evidence clearly showed, in fact, is "Rank 4," per the NJDEP Landscape Project and contained endangered and threatened species, such as the Barred Owl and Timber Rattle Snake;
viii) The Board failed to consider the significant environmental impact of the proposed discharge of 22,600 gallons per day of waste water into the Dove Mill Branch of the Toms River;
ix) The Board Chairman failed to specify the time, place and manner in which the notice of the meeting was provided as required by the Open Public Meetings Act;
x) The Board improperly accepted the applicant's statement that private schools are "as of right permitted" in the zone in reliance upon the Township's Consent Order with the U.S. Department of Justice. However, the Consent Order only stipulates that the Township shall repeal Ordinance 03-17 which disallowed schools in the zone "and will replace it with an Ordinance permitting schools in numerous residential and other zoning districts." The Consent Order contemplates the adoption of an Ordinance allowing schools in "numerous" zones, but not necessarily "every" zone. No new Ordinance has been adopted specifically permitting schools in the R-3 zone, nor specifically reviving the language that Ordinance 03-17 replaced. Thus, the proposed private school use is not "as of right" permitted, as represented by the school's counsel and determined by the Board. A Use Variance was required and was neither noticed not granted. Given the lack of public sewer availability and its rural nature, the R-3 zone is not appropriate for schools;
xi) The Board ignored/or improperly discounted the testimony of the Plaintiffs and the concerns raised by them.
The lawsuit seeks judgement: Ordering the approval of the application to be denied and vacated; Declaring the Resolution of Approval to be arbitrary, capricious, unreasonable, void and invalid; Awarding costs of suit and such other and further relief as the Court deems just and proper.
The Planning Board, represented by Attorney Robert Shea II Esq. has just filed an Answer denying all allegations in the Complaint.
The Board additionally alleges Affirmative Defenses including that; a) Plaintiffs fail to state a claim upon which relief can be granted; b) Plaintiff lacks standing to bring this Complaint; c) Plaintiff is barred by the doctrine of unclean hands; d) the claims are made in bad faith and without legal or factual basis; and e) every cause of action in the Complaint is frivolous, requiring an award of litigation costs and attorney fees.
Bais Yaakov of Jackson, represented by Attorney Donna Jennings Esq., has also just filed an Answer denying all allegations in the Complaint.
Bais Yaakov of Jackson (BYOJ) additionally alleges Affirmative Defenses including that; a) Plaintiffs fail to state a claim upon which relief can be granted; b) the claims set forth are barred because BYOJ complied with all statutory and regulatory requirements in connection with the matters involved herein; c) the claims set forth are barred because BYOJ acted reasonably in connection with the matters involved herein; and d) Plaintiff is barred by the doctrine of unclean hands.
Ocean County Superior Court Assignment Judge Francis Hodgson has just scheduled a Pre Trial Conference to be held on October 16, 2023. All parties are required to submit pre-trial memorandums prior to the conference. The trial date is expected to be scheduled at the conference.
The proposed school site is currently 3 separate lots, totalling 37.9 acres. According to public records obtained by FAA News, Bais Yaakov of Jackson already closed last year on a $3,950,000 purchase on 2 of the lots at 245 East Veterans Highway; the remaining lot at 279 East Veterans Highway is currently owned by Chaim Grunwald.
The school proposes to operate on a septic system as extending sewer to the site is costly. This proposal requires New Jersey Department of Environmental Protection approval. That application remains pending.
The septic system also requires approval from the Jackson Township Municipal Utilities Authority (JTMUA) and that approval has already been granted.
According to public records obtained by FAA News, at one point, the JTMUA's engineer wrote that the school's proposal to operate on a septic system was "acceptable." Subsequently, the engineer was directed by MUA staff to change the wording on their letter to say that the school's proposal to operate on a septic system was "appropriate..."
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