FIRST REPORT
In a written ruling just released, Ocean County Superior Court Assignment Judge Francis Hodgson questioned whether an Ordinance enacted by Lakewood's Township Committee permitting banquet halls in schools complied with Statutory meeting notice requirements.
Bizarrely, the very faulty notice deficiencies which Judge Hodgson is questioning was also the subject of a decades old published court ruling for which a judge voided another highly contentious Ordinance enacted by Lakewood's Township Committee! Curious minds wonder why the Township Committee did not learn the rules since then.
The saga began when, as the news was first broken here on FAA News, just before Rosh Hashonah last year, Judge Ford shut down Bnos Brocha's banquet hall on the legal basis that the Township's ordinances did not permit banquet halls in schools and Bnos Brocha never received a Use Variance from the Township's Zoning Board for the banquet hall.
In response, as previously reported here on FAA News, back in December 2022, Lakewood's Township Committee adopted an Ordinance legalizing banquet halls in schools.
Therefore, as previously reported here on FAA News back in January 2023, 1650 Corporate Road West LLC, an industrial park property owner and a party to lawsuits filed against Lake Terrace and Bnos Brocha which allege that they were operating banquet halls without Township approval, represented by Attorney Rob Shea Esq., filed a lawsuit seeking to stay and overturn the new ordinance.
The First Count of the lawsuit alleges that the Committee meetings which were held virtually, were in violation of the New Jersey Open Public Meetings Act.
The Second Count of the lawsuit alleges that Deputy Mayor Menashe Miller was prohibited from voting on the Ordinance because 1) he has sons who currently do, or recently did, attend Yeshiva Toras Ahron which has a banquet hall and would benefit from adoption of this ordinance, and 2) his mother holds "a significant position within the administration of Beis Faiga's girls school which operates one of the oldest banquet halls in Lakewood as well as a boys school within the industrial park, both of which could benefit from adoption of the ordinance."
The Third Count of the lawsuit alleges that because Deputy Mayor Miller was prohibited from voting, his vote was "tainted," and without his vote there would not have been sufficient votes to affirm the ordinance, therefore the Ordinance should be overturned.
The Fourth Count of the lawsuit alleges that the public notice for the second Committee meeting was insufficient due to the substantial changes to the Ordinance between first and second reading. "Following the Planning Board's review, the ordinance was substantially changed, yet at no time prior to adoption of the ordinance on second reading was the public noticed regarding the changes."
The Fifth Count of the lawsuit alleges that the Committee failed to notify the Ocean County Planning Board 10 days prior to adoption of the ordinance as required by State Statute.
The Sixth Count of the lawsuit alleges that the Committee failed to provide personal notice to all affected property owners prior to adoption of the Ordinance, which is a requirement for all "substantial changes" to zoning ordinances.
The Seventh Count of the lawsuit alleges that restraining Mr. Shea and Mr. Gemma from speaking longer than 4 minutes, especially regarding such a major issue, was "arbitrary, capricious, and unreasonable."
The lawsuit specifically calls out Township Manager Patrick Donnelly for muting Mr. Shea's mic "without any prompting from the Committee."
The Eighth Count of the lawsuit alleges that the Planning Board violated the Open Public Meetings Act by failing to give the public adequate notice of the Ordinance which they were going to review. The agenda simply stated "ordinance for review," without actually listing the Ordinance by title, number or summary.
The Ninth Count of the lawsuit alleges that the Planning Board simply made changes to the proposed parking requirements, but failed to properly conduct a consistency review of the Master Plan as they are required to do when they review proposed ordinances. They also failed to adopt a Resolution memorializing their own vote or findings, as well as to submit a report to the Committee.
The Tenth Count of the lawsuit alleges that Planning Board Attorney John Jackson's email to the Committee listing the Board's recommendations, did not constitute a "report" (of the Ordinance) which the Planning Board is required to submit to the Committee, nor did the Planning Board even bother to pass a Resolution adopting Mr. Jackson's email as their report.
The lawsuit also notes that this "report" was not actually read into the record at the second Committee meeting, nor was it made available for public review.
Furthermore, this report inaccurately stated that the Planning Board recommended grandfathering in currently operating banquet halls, which in fact the Board specifically stated they did not want to incorporate.
"This provision is at odds with Mayor Coles' on the record representation to the public at the First Reading that the ordinance "is for future applications. This provision is at odds with Mayor Coles' on the record representation to the public at the Second Reading that an existing school's ability to operate an existing banquet hall "would depend on whether or not they've been to the Planning Board already to get that approval as an accessory use.
"Jackson's email also stated that banquet halls should be specifically permitted in the Industrial Park. At no time did any of the Planning Board members state that banquet halls should be specifically permitted in the Industrial Park. Jackson did not read this provision to the Board, nor was it voted on. His comment had no basis in anything the Board stated and further had no bearing whatsoever on the Ordinance as presented," the lawsuit alleges.
The Tenth Count (b) of the lawsuit alleges that it can be "inferred that the Ordinance was inconsistent with the Master Plan," and therefore, if Mr. Jackson's email did constitute a "report," the Committee failed to address any inconsistency between the Ordinance and the Master Plan and publish a Resolution containing the reasons for the deviation from the Master Plan, as required by State Statute.
The Eleventh Count of the lawsuit alleges that the Planning Board's reliance on Administrator Ally Morris' report was "arbitrary, capricious, and unreasonable."
In response to Mr. Gemma presenting his expert report showing that the Ordinance was inconsistent with the Master Plan, Mr. Jackson quickly suggested that Board Engineer Dave Magnos review the ordinance and provide his own expert report. "This was never done. Rather than seeking an expert analysis from its own professionals, the Board instead relied on a report prepared by Morris, who has neither a planner nor an engineer. Morris admitted she did not rely on any expert interpretation or legal authority, but rather, on 'personal experience.' Morris' report set forth that in her personal opinion, banquet halls are an accessory use to a school. Morris is not qualified to make this determination. Since Morris has no expertise in the area of planning, the Board's reliance on her report over Gemma's is 'arbitrary, capricious, and unreasonable.'"
The Twelfth Count of the lawsuit alleges that Township Attorney Steven Secare "tainted the record" at the Second Reading.
"At the Second Reading, Donnelly muted Plaintiff's Counsel in middle of his presentation of Plaintiff's objection. In response to this, Secare advised the Committee that they did not need to allow Plaintiff's counsel to present their full objection since "he is going to sue us anyway.
"Secare vastly overstepped his role as Township Attorney, and in fact took an active position to quash the right's of the public's right to object and be heard. Moreover, he emboldened the Committee to disregard Plaintiff's objection. Most disturbingly, Secare poisoned the Committee against the Plaintiff's position by speculating as to the threat of a lawsuit against the Committee," the suit contends.
The Thirteenth Count of the lawsuit alleges that the Committee failed to review a Planning Board report as required by State Statute.
"At the Second Reading, Mayor Coles specifically references a report from the Planning Board which contains comments regarding the Ordinance. The Committee relied upon this report. The Committee selectively adopted some, but not all of the alleged report's recommendations. At no time prior was the public made aware of the alleged report. At no time was the public permitted to review the alleged report.
"Plaintiff later learned that the alleged 'report' was not actually a 'report' but rather an email from Mr. Jackson's which inaccurately summarized the Board's findings. Same was never reviewed or officially adopted by the Board," the suit charges.
The Fourteenth Count of the lawsuit alleges that the Amended Ordinance is not consistent with the Master Plan and "is not drawn with reasonable consideration to the character of each district and its peculiar suitability for particular uses," as required by State Statute.
The Amended Ordinance applies to all non commercial zones.
The New Jersey Municipal Land Use Law requires that a zoning ordinance or amendment thereof "be substantially consistent with the land use plan element and the housing plan element of the master plan or designed to effectuate such plan element." It further requires "the zoning ordinance shall be drawn with reasonable consideration to the character of each district and its peculiar suitability for particular uses and to encourage the most appropriate use of land..."
"The Amended Ordinance impacts the industrial zone where Plaintiff's property is located. Public commentary was provided at the First Reading expressly stating that the industrial park should be excluded from the Ordinance's effects. Gemma provided testimony to the Planning Board and the Committee that the Amended Ordinance fails to consider the character of each zone.
"The industrial park is populated with industrial uses. There has been a history of litigation as a result of the existing unapproved banquet halls disrupting the operations of multiple industrial properties. Commercial trucks have great difficulty accessing industrial properties and traversing the overcrowded streets as a result of banquet hall activities. Banquet hall patrons regularly trespass onto industrial properties and park in their lots.
"The Amended Ordinance contains no buffer, lighting, or setback requirements, nor does it contain any requirements at all, aside from its minimal parking requirement. Under the Amended Ordinance, a banquet hall would be able to operate a mere 10 feet from an industrial building. The traffic and trespass issues created by banquet halls within the industrial park will be exacerbated by the Amended Ordinance," the lawsuit contends.
The Fifteenth Count alleges that the ambiguous language of the Amended Ordinance effectively creates a Conditional Use ordinance.
"The Amended Ordinance makes banquet halls into an 'accessory use' in schools. As the parking requirements are a 'specific condition' to the accessory use of a banquet hall in a school, the effect of the ordinance is to create a permitted use with conditions which constitutes a 'conditional use.'"
The New Jersey Municipal Land Use Law requires Conditional Uses to "definite specifications and standards which shall be clearly set forth with sufficient certainty and definiteness to enable the developer to know their limit and extent."
The Amended Ordinance reads:
For the section of the school utilized for catering and banquet functions (to be known as the Banquet Hall space, but not including bathrooms, food prep rooms, and facilities not associated with the Banquet Hall function, such as guest preparation rooms, etc.) 1.0 parking space shall be required for every 50 square feet thereof.
"The Amended Ordinance contains a non-exhaustive list of areas which do not count toward the parking calculation, ending with the word 'etc.' The Amended Ordinance does not state whether said parking requirement is in addition to that required for the school itself, or if the school spaces can be counted for purposes of meeting the parking condition for a banquet hall. Due to the use of the word 'etc,' the Amended Ordinance is ambiguous on its face, and fails to set forth 'definite specifications and standards' as required by the Municipal Land Use Law," the suit concludes.
As recently reported here on FAA News, in July 2023, Judge Hodgson granted Mr. Shea's Motion to Amend the Complaint, to add two additional counts.
The additional counts involve violations of the New Jersey Open Public Meetings Act (OPMA) on the part of the Township Committee and Planning Board, resulting in the lack of jurisdiction for either party to have held any of the meetings at which the Ordinance was discussed and adopted.
Count Sixteen argues that the Planning Board failed to Reorganize for the 2022 term and had no authority to conduct the November 15 and November 29, 2022 hearings.
NJSA 10:4-18 mandates that a public body must publish an annual notice of all public meetings for the coming year in two official newspapers with 7 days of their annual re-organization meeting.
The Planning Board voted on their 2022 calendar at the November 23, 2021 public meeting.
The annual notice for same was published in two newspapers on December 4 and December 7 of 2021.
The Planning Board held their 2022 re-organization hearing on January 4, 2022.
At the January 4, 2022 hearing, the Planning Board did not vote on or re-adopt the 2022 calendar.
The annual notice was never re-published within seven days of the January 4, 2022 re-organization hearing.
Wherefore, Plaintiff demands the entry of an order against Defendants:
1. Finding that the Planning Board failed to properly re-organize and adopt the annual meetings calendar for the 2022 term.
2. Finding that the November 15, 2022 and November 29, 2022 hearings were ultra vires and void as a matter of law.
Count seventeen argues that the Committee violated the Open Public Meetings Act, thus rendering the October 20, 2022 and December 8, 2022 hearings ultra vires.
NJSA 10:4-18 mandates that a public body must publish an annual notice of all public meetings for the coming year in two official newspapers with 7 days of their annual re-organization meeting.
Under NJSA 10:4-8, all meetings which are not contained within the annual notice must be noticed as special meetings, with said notices published in two official newspapers at least 48 hours prior to the meeting.
The Committee held their 2022 re-organization on January 3, 2022.
The resulting annual notice was published only in the Star Ledger on January 5, 2022.
Neither the October 20, 2022 meeting nor the December 8, 2022 meeting were noticed as special meetings.
As such the Committee had no authority to take any action at either meeting.
Wherefore, Plaintiff demands the entry of an order against Defendants:
1. Finding that the Committee failed to properly adopt and publish their 2022 annual notice
2. Finding that the October 20, 2022 and December 8, 2022 hearings were ultra vires and void as a matter of law.
As previously reported here on FAA News, back in August, Attorney Shea filed a Motion for Summary Judgement as to Counts One, Four, Five, Six, Eight, Sixteen, and Seventeen, and seeking judgement that the Ordinance and Amended Ordinance are hereby declared void.
As previously reported here on FAA News, Township Attorney Robin La Bue Esq. and Planning Board Attorney John J. Jackson III Esq. pushed back hard against this motion.
As to Count One, Ms. La Bue argued that OPMA does authorize virtual hearings:
The Open Public Meetings Act itself defines a meeting as follows: any gathering whether corporeal or by means of communication equipment....
The Open Public Meetings Act definition permit meetings held, “by means of communication equipment.”
In a written ruling just released, Judge Hodgson agreed with the Township that OPMA does permit public meetings to be held "by means of communication equipment," i.e., virtually.
Judge Hodgson also dismissed Counts 4 and 5, finding that no new notice was required because the amended ordinance did not contain any substantial changes.
Importantly, citing the Appellate Division's ruling in the Kamenets case, this ruling only considers Bar Mitzvah halls an accessory use to a boy's elementary school. Weddings are not considered an accessory use to a school. (See footnote in the photo below).
Judge Hodgson further dismissed Count 6, relying on the Planning Board which argued that they have historically found banquet halls to be an accessory use to schools.
Judge Hodgson additionally agreed with the Planning Board as to Count 8, and found that even if the Board's actions did not comply strictly with the Statue, their public notices were not voidable.
As to Count 16, the Planning Board argued that "this is a new count which was filed untimely." Judge Hodgson agreed and dismissed this argument.
However, as to Count 17, Judge Hodgson was disturbed to find that the meeting notices were emailed to the newspapers less than the required 48 hours prior to the meeting.
"More discovery is needed on this issue. Therefore, for now the court declines to grant summary judgement on this issue. Either party may supplement the record," Judge Hodgson wrote.
Interestingly, Lakewood Township has quite a record with complying with the 48 hour Statutory meeting notice requirement deadline.
In a published decision released in 1997, Judge Serpentelli tossed out an Ordinance in which the Township Committee transferred the Township's Inspection Department to the County of Ocean pursuant to an Interlocal Services Agreement.
In the case known as Lakewood Citizens v. Tp. Committee, 306 N.J. Super. 500 (Law Div. 1997), the plaintiff-intervenors asserted that the notice of the special meeting of April 1, 1996 was defective because the Township failed to provide adequate notice, in that it did not furnish written advance notice of at least 48 hours of the special meeting in compliance with the provisions of N.J.S.A. 10:4-8(d).
The issue was whether, as the Township argued, it is sufficient merely to deliver the notice to at least two newspapers 48 hours before the meeting or whether it must be delivered to two newspapers in time to permit those newspapers to publish the notice 48 hours before the meeting.
Judge Serpentelli cited the ruling in Worts, in which the Township sought to hold a special meeting and sent notice of that meeting to four newspapers. In that case, Judge Haines found that the publishing schedule for the newspapers was such that only one could have published the notice 48 hours before the scheduled meeting. In that case, Judge Haines vacated the formal action taken at the meeting.
Likewise, Judge Serpentelli concluded:
As discussed earlier, the notices involved here reached only one newspaper capable of publishing 48 hours in advance of the meeting. Therefore, this court concludes that the meeting of April 1, 1996, was in violation of the OPMA and the resolution adopted therein is void. As a result, the Township may not transfer its UCC enforcement activities to the County of Ocean without the consideration and adoption of a new resolution.
More importantly, Judge Serpentelli gave the Township some harsh words regarding their lack of compliance with Statutory notice requirements:
When a public body sends meeting notices to newspapers for publication and, to the actual or readily ascertainable knowledge of that body, those newspapers cannot publish the notice at least 48 hours in advance of the meeting, there is no compliance with the Open Public Meetings Act.
The evil inherent in the Township's system is demonstrated by the fact that the meetings at which the proposed ordinance was introduced on January 11, 1996 (a regular meeting date) and then reintroduced on January 25 (a regular meeting date), attracted large numbers of people. In particular, the January 25 meeting was attended by an overflow crowd since that was the scheduled date for final reading and public participation. At that time, all those in attendance were advised that the ordinance was being reintroduced on first reading at that meeting and a second reading and public hearing would take place on February 8 (again, a regular meeting date).
While the Township correctly argues that no participation is required with regard to a resolution, it is hard to comprehend why the governing body chose to act without public comment given the intense public interest.
Whether justified or not, it is easy to understand how the average citizen would conclude that the Committee was looking for a way to avoid participation or notice and to stifle knowledge of its intended action. That conclusion may not be correct or fair but, given the level of distrust and cynicism of government and public officials which is extant in our society, it is a reaction which could be predicted.
It remains to be seen how and when the parties in the banquet hall ordinance lawsuit will supplement the record in this matter.
The Plaintiffs will also likely depose the Township Committee as to any conflicts of interest they may have had in enacting this Ordinance.
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