NEW LEGAL FILING SAYS ALL ACTIONS TAKEN AT RECENT ZONING BOARD MEETING WAS ILLEGAL

A new legal filing in New Jersey Superior Court in Ocean County asserts that the Lakewood Zoning Board's recent meeting was held in violation of statutory requirements and all actions taken at the meeting must be voided.

This new legal challenge was just filed to the court by way of a motion to amend a previously filed complaint which alleges that all of the Zoning Board's meetings this year prior to May failed to comply with the New Jersey Open Public Meetings Act (OPMA) and therefore all actions taken at their meetings should be null and void.

This lawsuit is part of 1650 Oak Street LLC's ongoing litigation against Lake Terrace.

As previously reported here on FAA News, back in June 2023, 1650 Oak Street LLC, represented by Attorney Rob Shea Esq. filed a lawsuit alleging that all of the Zoning Board's meetings this year (including an initial hearing on Lake Terrace's Use Variance appeal) failed to comply with the New Jersey Open Public Meetings Act (OPMA) and therefore all actions taken at their meetings should be null and void.

The Senator Byron M. Baer Open Public Meetings Act "finds and declares that the right of the public to be present at all meetings of public bodies, and to witness in full detail all phases of the deliberation, policy formulation, and decision making of public bodies, is vital to the enhancement and proper functioning of the democratic process; that secrecy in public affairs undermines the faith of the public in government and the public's effectiveness in fulfilling its role in a democratic society, and hereby declares it to be the public policy of this State to insure the right of its citizens to have adequate advance notice of and the right to attend all meetings of public bodies at which any business affecting the public is discussed or acted upon in any way..."

The Act further provides "the right of its citizens to have adequate advance notice of and the right to attend all meetings of public bodies at which any business affecting the public is discussed." "Adequate notice" means written advance notice of at least 48 hours, giving the time, date, location and, to the extent known, the agenda of any regular, special or rescheduled meeting... which shall be... delivered to at least two newspapers... designated by the public body to receive such notices because they have the greatest likelihood of informing the public within the area of jurisdiction of the public body of such meetings...

The key part here relates to the provisions of the Act which defines "adequate advance notice" which must be provided to the public prior to any scheduled meeting of a public body.

According to the lawsuit which was filed in New Jersey Superior Court in Ocean County:

Lakewood's Zoning Board scheduled a special meeting for November 28, 2022 to hear Lake Terrace's Use Variance appeal.

On the day of the meeting, Mr. Shea wrote to the Board that they failed to provide "adequate notice" of the special meeting by only publishing notice in one newspaper and not two, and therefore they lacked jurisdiction to hold the special meeting.

Following receipt of this letter, the Board cancelled the scheduled meeting, and re-scheduled the application to be held at a special meeting on February 1, 2023.

On January 9, 2023, the Board held its annual reorganization meeting.

The meeting was only noticed for as a regular meeting in the January 8, 2022 Annual Notice.

The Board reorganized, swore in its professional staff, adopted the 2023 regular meeting calendar, and vested themselves with the quasi-judicial power to hear applications.

The 2023 calendar of regular meetings was published in the Asbury Park Press on January 18, 2023.

On January 30, 2023, Mr. Shea sent the Board another letter which pointed out yet another violation of the Open Public Meetings Act.

This letter advised that due to an error in the January 8, 2022 Annual Notice, every meeting noticed thereunder, including the January 9, 2023 reorganization meeting, had to be noticed as a special meeting, in two official newspapers in order to meet the definition of "adequate notice."

The January 8, 2022 Annual Notice was only published in one newspaper, as opposed to the statutory two, thus rendering it void.

Since the January 9, 2023 meeting was only noticed in the void January 8, 2022 Annual Notice, any business conducted at that meeting, including the re-organization, the appointing of professionals, the vesting of quasi-judicial authority, the adoption of the regular meeting calendar, and subsequent publishing of same was done without authority under OPMA.

Furthermore, the letter advised that since the January 18, 2023 Annual Notice was only published in the Asbury Park Press, it was similarly deficient.

On January 31, 2023, Board Attorney Jerry Dasti wrote a letter to the Board advising that the special meeting scheduled for February 1 must be cancelled, and that the Board must reorganize properly, and re-affirm any actions taken at the January 9, 2023 meeting.

Mr. Dasti further suggested that such actions be taken at the Board's February 6, 2023 meeting, which he erroneously dubbed a "regular meeting."

As the February 1 special meeting was cancelled, Lake Terrace's Use Variance appeal was carried to May 1, 2023.

The February 6, 2023 meeting was only noticed in the void January 18, 2023 Annual Notice.

At the February 6, 2023 meeting, the Board appointed both their attorney and engineer. However, no vote was ever taken to re-adopt the calendar or swear in new Board members.

The new annual notice was published in the Asbury Park Press and the Star Ledger on February 9, and 10, 2023.

This second Annual Notice contradicted the events which took place at the February 6, 2023 meeting, and contained representations that the Board members were sworn in, given positions, and vested with quasi-judicial power to hear applications, when in fact, no vote ever took place with respect to the Board members nor were they sworn in.

On April 27, 2023, Mr. Shea again wrote to the Board to inform them that the Board's reorganization was once again deficient.

The letter stated that the February 6, 2023 meeting was not noticed in accordance with OPMA, and therefore the action taken at the meeting, including the publication of the new annual notice, was without authority and void. As such, the Board had no quasi-judicial authority to hear any applications until they reorganize properly.

Furthermore, the letter alerted the Board that because the annual notice was not published in accordance with OPMA, a "regular meeting" is an impossibility. As such, the May 1, 2023 scheduled hearing must be noticed as a special meeting.

Despite the concerns raised in this correspondence, the Board chose to disregard and the meeting was held.

The Board chairman opened the meeting by saying: Good evening Ladies and Gentlemen. I'd like to call tonight's meeting to order. Tonight's meeting has been advertised in accordance with the New Jersey Sunshine Law. Madam Secretary roll call please?"

Mr. Shea then placed the facts as contained in his April 27 letter on the record.

Board Conflict Attorney John Jackson Esq. responded by advising the Board that he felt the issue was minor, but that if Mr. Shea believed there was a problem, he can have his remedy in Court.

The Board then continued to address Lake Terrace's application and concluded that the meeting meet the standards set forth in the OPMA.

The first count of the lawsuit alleges that the Board is not permitted to meet to conduct official business until adequate notice has been provided to the public.

Because the Board failed to comply with the adequate notice procedures set forth in the OPMA, all decisions, determinations, testimony, submitted exhibits, and all actions taken during the January 9, February 6, and May 1, 2023 hearings are null and void. Furthermore, the Board cannot currently hear any applications until the errors regarding their annual reorganization are corrected.

The second count of the lawsuit alleges that the January 18, 2023 Annual Notice violated the OPMA because the Board held its reorganization meeting on January 9, and published the January 18, 2023 Annual Notice only in one newspaper, nine days after the meeting. OPMA requires that annual notices be published in two newspapers, within seven days after the reorganization meeting.

As this annual notice was deficient, the February 6 and May 1 meetings were not properly noticed whereas any meetings not noticed for in the annual notice must be noticed as special meetings, and the Board failed to notice these meetings as special meetings. As such, all actions taken at these meetings are null and void.

The third count of the lawsuit alleges that the Board failed to recite the Statutory language required by the OPMA.

The Open Public Meetings Act (10:4-10) has a very specific requirement for the statement regarding compliance with adequate notice.

At the commencement of every meeting of a public body the person presiding shall announce publicly, and shall cause to be entered in the minutes of the meeting, an accurate statement to the effect:

a. that adequate notice of the meeting has been provided, specifying the time, place, and manner in which such notice was provided...

Chairman Abe Halberstam's opening statement of "Good evening Ladies and Gentlemen. I'd like to call tonight's meeting to order. Tonight's meeting has been advertised in accordance with the New Jersey Sunshine Law. Madam Secretary roll call please?" failed to comply with the above provision of the OPMA.

The lawsuit seeks an order finding that the Board failed to provide adequate notice in that both the January 18, 2023 and the second annual notices were deficient, and therefore all actions taken at the January 9, February 6, and May 1, 2023 hearings are null and void as those meetings were not properly noticed.

The lawsuit further seeks an order finding that the Board currently has no power to hear applications, and can hear no further testimony with respect to Lake Terrace's Use Variance appeal until such time as it complies with the Open Public Meetings Act.

The suit further seeks attorney's fees and costs of suit and any other such relief as the Court deems equitable and just.

As previously reported here on FAA News, Lake Terrace, represented by Attorney Matthew Fiorovanti Esq., filed a Motion to Dismiss the lawsuit on the basis that; a) the complaint was not filed timely; b) the Board can simply take remedial action to formally ratify its reorganization; c) Lake Terrace is not an appropriate defendant and should be dismissed.

As previously reported here on FAA News, Zoning Board Attorney Jerry Dasti Esq. also filed a Motion to Dismiss the lawsuit on similar assertions.

In a move that can only be considered "insane" even by Lakewood standards, Mr. Dasti failed to recuse himself from representing the Board in this litigation despite that it also involves his personal client.

Even more insane, Mr. Dasti submitted a brief in the matter and openly supported his personal client's positions.

In fact, even more shamelessly, Mr. Dasti even went so far as to mention his client and to put forth his client's position as if that is the Zoning Board's position!

As previously reported here on FAA News, Mr. Shea responded with a Cross-Motion for Summary Judgement in the matter.

The legal filing asserts that the Board has demonstrated its predisposition and bias against Plaintiff:

The Board's Motion to Dismiss, and accompanying factual background is equally as troubling and inaccurate as KBS's. First and foremost, the Board's paperwork and certification was filed by Dasti, who has a conflict of interest as applied to the KBS application since he represents Greenwald Caterers in the banquet hall litigation.

Secondly, it is nothing short of shocking that the Board itself makes the following statement in its brief:

This Prerogative Writs matter is another one of 1650 Oak Street LLC's attempts to shut down its neighbor, co-defendant KBS Mt. Prospect (Lake Terrace). Plaintiff has continuously used the Superior Court to challenge, over and over again, KBS's operations as a means to improve its value and avoid competition...

The above quote is truly disturbing for a litany of reasons. Firstly, Plaintiff has not filed any actions aside from this one to challenge the Board's operations. The only other litigation involving the Board was the Declatory Judgement action filed by the Board itself. Second, the Board, with neither certification, nor citation to any document whatsoever, accuses Plaintiff of seeking to shut down KBS purely to "improve its value and avoid competition." As the Court is aware, Plaintiff is not in the business of running a banquet hall, and as such, is not in competition with KBS. More to the point, however, is that the Board's view of Plaintiff, before Plaintiff has even presented any testimony, then it is readily apparent that Plaintiff cannot possibly hope to have any fair hearing before the Board.

Through the above quote and the rest of their brief, the Board has shown its bias and vitriol for Plaintiff, going so far as to falsely accuse them of interfering in their neighbor's business, presenting an unwarranted and frankly uninformed opinion of Plaintiff's other litigations with KBS, and actively making arguments in favor of KBS. Specifically, the Board sees fit to praise KBS's caterer, who is unsurprisingly one of Dasti's clients, by stating, "In fact, the record is clear that before beginning to occupy the property, the caterer obtained a commercial Certificate of Occupancy to utilize the property as a banquet hall." The Board has no cause and no right to make this determination, as the validity of this document, as well as when the occupation of the facility took place, is a point of challenge in the banquet hall litigation. Furthermore, the Board states that, "without admitting any wrongdoing, KBS made this application to 'clear up' any issues with its use of the property." This is not only false but is a shameless bolstering of KBS against the determination of the Board's own engineer, who concluded that this use was a non-permitted use in the M-1 zone. It is undisputed that KBS's use is not permitted and requires a use variance.

It is clear from their filing that the Board has cast aside any appearance of objectivity in the performance of its duties, as well as any pretense of respect for the rights of an interested party. It is further clear that Plaintiff can expect no fair treatment from the Board, as it has already judged Plaintiff as a nefarious entity who seeks to improperly demolish their neighbor's business. Moreover, the Board's inclusion of these mischaracterizations of Plaintiff are further troubling as they have nothing to do with the simple legal question that the parties are here to answer: whether or not the Board violated OPMA.

Despite asserting in his motion to dismiss that the Board properly reorganized, as previously reported here on FAA News, Mr. Dasti replied to the Cross-Motion that "as an overabundance of caution, as a means of resolving the outstanding motions, we are suggesting that we consent to publishing new notices for a reorganization meeting to be held at the next regular meeting on Monday, September 11, at which point the Board will formally reaffirm all actions taken this year."

However, Mr. Shea vehemently opposes this as a way to settle the litigation, arguing that the Annual Reorganization Meeting must be held on a date different then a Regular Meeting.

Essentially, what this means is that Mr. Shea agrees that the Board should reorganize, however, they can not hear any land use applications - including Lake Terrace's Use Variance appeal - that same night.

Effectively, Mr. Shea was seeking a Court Order shutting down the Board's upcoming public hearing (aside from the brief reorganization ceremony).

Ocean County Superior Court Assignment Judge Francis Hodgson was previously scheduled oral arguments on the motions prior to the September 11 meeting. However, due to case loads the hearing was postponed to Friday, October 20, 2023. Therefore, the recent Zoning Board hearing took place as scheduled.

In the meantime, the Board held meetings - including hearing testimony on the Lake Terrace application - on June 12, July 10, and July 24. despite taking no corrective measures to attempt to bring themselves into compliance with OPMA.

However, the mere filing of this lawsuit was sufficient for Board Chairman Halberstam to change his opening statement to ensure that it complies with the OPMA. As previously reported here on FAA News, Mr. Halberstam has opened all subsequent meetings with the correct Statutorily required opening statement.

Finally, on August 25, 2023 - in accordance with their proposed settlement of the ongoing litigation - the Board did publish notice for a reorganization meeting, and they held a reorganization meeting on September 11, 2023 wherein they adopted resolutions reaffirming all their past actions this year including on hearing the Lake Terrace application.

However, Mr. Shea is running right back to court, arguing that both the legal notices of the reorganization meeting as well as the meeting itself, were not in compliance with statutory requirements and therefore they should be voided.

On August 25, 2023 the Board published notice in the Asbury Park Press of the upcoming reorganization meeting.

The agenda for the meeting listed "Special Meeting," "Resolutions 2023-1, 2023-2, and 2023-3," and "Close of Special Meeting."

The agenda contained no indication of the contents of each Resolution.

The agenda was published verbatim in its entirety in the Asbury Park Press, with no details as to the contents of each Resolution, nor did they give a date, time, and place of the hearing.

On September 11, 2023, the Board published notice in the Star Ledger of the upcoming reorganization meeting. This notice differed substantially from the August 25, 2023 notice.

Either way, the notice did not contain details as to what the dates of the prior actions sought to be ratified. The notice also provided the wrong address for the location of the meeting, as well as the wrong address and block and lot for Lake Terrace.

Plaintiff discovered these deficiencies prior to the meeting, and sent the Board a letter placing them on notice of their continued violations of OPMA.

The letter first notified the Board that written advance notice of at least 48 hours in two official newspapers is required for any special meeting. Since the second notice was only published the morning of the hearing, the Board had no authority to proceed with the special meeting.

The letter further informed the Board that because no regular calendar was ever published, there could be no regular meeting. As such, the Board could not move forward with the Lake Terrace hearing that night, regardless of the special meeting notice deficiencies.

At the September 11, 2023 meeting, Mr. Shea stood up to object to the reorganization meeting. Mr. Dasti stated, "I see Mr. Shea is up. I'm ignoring him because I don't want to involve him and put a statement on the record."

Mr. Dasti then indicated that the reorganization was a direct result of Plaintiff's filing of this litigation. He further indicated that the reorganization/special/regular would take place "as if we never had a meeting."

The resolutions contained the incorrect block number for the property. They also failed to contain the dates of the prior hearings that were being "reaffirmed."

Despite that the resolution reaffirming all prior testimony on the Lake Terrace application was considered at a special meeting, Lake Terrace never published notice of the meeting.

Board members Mordy Gross and Moshe Lankry refused to recuse themselves on voting on this resolution despite that they found cause to recuse themselves from hearing the Lake Terrace application.

Further, all of the resolutions were prepared by Mr. Dasti despite that he has conflicted himself out of the Lake Terrace application as he is currently representing Greenwald Caterers in related litigation.

The Board did not permit the public to comment on the reorganization and the resolutions until after they voted on them.

Once Mr. Shea was permitted to speak and he voiced his objections, the Board disregarded him, saying, "any objections we irrelevant and he should bring it up with Judge Hodgson."

After adopting the reaffirmation resolutions, the Board voted to close the special meeting and open the regular meeting.

The regular meeting was not noticed in an annual notice, published in two official newspapers within 7-days of the reorganization.

The Board heard testimony on the Lake Terrace application at this regular meeting.

As of September 19, 2023, the Board has not published an Annual Notice in either the APP or the Star Ledger.

Accordingly, Mr. Shea has filed a Motion to Amend the Complaint with Count 4 which asserts that the Board violated the OPMA by failing to provide adequate notice of the reorganization/special/regular meeting to two official newspapers at least 48 hours in advance.

Additionally, the motion includes Count 5 which asserts that the Board's ratification of the testimony on the Lake Terrace application failed to comply with Polilo v. Deane which requires ratification and associated notices to set forth the dates which the testimony sought to be ratified was given, who gave the testimony, and what exhibits would constitute the ratified record.

The amended complaint seeks judgement declaring the reorganization/special/reorganization meeting ultra vires and void for failure to comply with the OPMA, declaring the attempted ratification of the Lake Terrace application ultra vires and void, declaring the resolutions void, as well as invalidating all testimony heard on the Lake Terrace application to date, and ordering a full re-hearing.

The Motion to Amend the Complaint is returnable before Judge Hodgson on Friday, October 20, 2023, the same time that the previously filed motions are returnable.

As previously reported here on FAA News, this is by far not the first corruption risk caused by Mr. Dasti in this matter.  

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