LITIGATION HIGHLIGHTS WHY OUR LAND USE BOARDS NEED THEIR OWN PROFESSIONAL TRAFFIC EXPERTS

Jackson Township's Planning and Zoning Boards have their own professional traffic expert.

Lakewood Township's Planning and Zoning Boards do not.

Trial briefs just filed in pending litigation highlights why Lakewood's boards would benefit from getting their own professional traffic expert.

The litigation involves Covington Village.

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 in 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 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.

The Plaintiffs have now filed their trial briefs. A key contention is that "their expert testimony was unrebutted in the record, and the Board had no basis to refuse to credit such testimony."

"While a Board may reject expert testimony, it may not do so unreasonably, based only upon bare allegations or substantial beliefs." Cell South of NJ v. Zoning Board of Adjustment, West Windsor Twp.

"A land use board is not free to disregard uncontradicted expert testimony without a reason." Exxon v. Bernardsville Board of Adjustment.

The trial brief states in part:

The Plaintiff once again seeks the reversal of the arbitrary denial by the Board of the plaintiffs application for conditional use variance relief to remove the age-restriction.

Despite the findings and conclusions made by Judge Ford in remanding the Application to the Board, the Board has repeated its flagrant failure to comply with the Municipal Land Use Law and has doubled down on its speculative, arbitrary, and unreasonable denial of the Covington Village application.

The Board's second denial of the Application suffers from the same fatal deficiency identified by Judge Ford in vacating the initial denial and remanding the Application to the Board. Once again, the Board has failed to set forth any findings of fact and conclusions of law in their Resolution of Denial. Like the initial deficient Resolution, the Board's second Resolution simply parrots the remarks of the individual Board members without any discussion of the applicable standard for conditional use variance relief and without any discussion of how or why Plaintiff had failed to satisfy such standard. Like the initial deficient Resolution, there is no explanation whatsoever in the Second Resolution as to why the Board seemingly found that Plaintiff had not satisfied the positive and negative criteria for the conditional use variance to remove the age-restriction from the units. Just as Judge Ford found the initial resolution to be deficient, this Court should conclude that the second resolution also fails to conclude with the MLUL's requirements. Yet, rather than remand this application to the Board for a third bite at the apple, the Court should vacate the resolution in its entirety and direct the Board to adopt a resolution granting the application in its entirety.

As to substance of the Board's "consideration" of the application, it is clear that the Board summarily disregarded the unrebutted evidence on behalf of the Plaintiff and instead interposed its own subjective, baseless opinion as to the propriety of the application. Even if the remarks of the individual Board members could constitute the findings of the Board as a body, the reasons articulated by these Board members are not supported by - and in most instances directly contrary to - the mountain of evidence presented by the plaintiff.

Several Board members voted to deny the application because of a subjective belief that there is a "shortage of senior housing in Lakewood." Yet, Judge Ford previously found that it is undisputed that there was no evidence in the record that there is any such shortage or market demand for senior housing. The Board could not rely on its speculative, baseless opinion to the contrary as a basis to deny the application.

Similarly, several Board members voted to deny the application because of traffic concerns. Yet there was no evidence in the record to support such "concerns;" in fact, Scott Kennel testified that there would be no adverse traffic impacts associated with removing the age restriction. However, the Board decided - all on its own, without any basis to do so - that Mr. Kennel's well-founded opinions regarding the absence of any detrimental traffic impacts from the proposal were wrong. The resolution expressly indicates that these Board members relied on speculative traffic "concerns" "notwithstanding the testimony of the applicant's experts at the prior hearing." This candid admission, in and of itself, justifies the reversal of the Board's denial. The Board presented speculative hypotheticals, none of which had any basis in fact, regarding school buses entering the development and impacts on traffic. The Board had no basis Mr. Kennel's expert opinion "based on my 40 years of doing this, I'm very confident and knowing it's in Lakewood that this type of product that we have more than adequate parking for this development." Yet once again, the Board appeared to believe that it simply knew better than Plaintiff's experts that the proposed development would result in substantial negative impacts.

Several Board members also voted to deny the application based on their "concerns" about those property owners who purchased units based on the promise that the age restriction would be imposed throughout the entire community. Yet, not a single neighbor testified about such speculative "concern." On the contrary, Plaintiff presented unrebutted evidence which demonstrated that the existing Covington Village community voted overwhelmingly in favor of the separation and the removal of the age restriction, since the removal of the age restriction was the only way to avoid the existing homeowners' insurance premiums from skyrocketing and their home values from plummeting - again, a fact which Judge Ford found to be undisputed in the record.

The Board was given the opportunity to cure its deficient resolution, apply the proper standard of review, and reconsider its decision to deny the application. The Board simply failed to follow the law, as directed by Judge Ford, as it simply repeated its arbitrary denial of the application without explanation. The Board's failure to justify its decision is understandable: the denial is simply unjustifiable based on the record. On one side of the scales, Plaintiff presented substantial evidence - including unrebutted expert testimony - to support the positive and negative criteria of its conditional use variance application. On the other side of the scales, the Board placed its speculative, unsupported and baseless "concerns." These concerns have no weight whatsoever and could not outweigh the substantial evidence presented by the Plaintiff. The Board's decision to deny the application despite the overwhelming weight of the evidence is a classic example of an arbitrary, capricious and unreasonable decision.

It has now been 2 years since the Plaintiff submitted the application to the Board, during which time the Board has twice purported to deny the application without explanation. Because the Board's unexplained and unjustified denial of the application was arbitrary, capricious and unreasonable, the Court should enter judgement reversing the Board's denial.

These arguments highlight why Lakewood's boards would benefit from hiring their own professional traffic expert - they would be better equipped to protect themselves from litigation that threatens to overturn their decisions such as this one.

Zoning Board Attorney Jerry Dasti Esq. has 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.

The Board's trial briefs are due next month. Judge Hodgson has scheduled the trial to be held on Monday, December 4, 2023.

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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