Lakewood Township's Planning Board is set to soon reconsider Yehuda Dachs's application that would add 500 cars to the Cross and Street area traffic. However, the item will not be heard at this coming Tuesday's public hearing. Rather, the Board is holding off on dealing with this application until after Election Day.
Application SD 2511, filed under the name Yeshiva Chemdas Hatorah, seeks approval to build a brand new residential development at the 17.5 acre parcel on the northeast corner of Cross Street and James Street with 125 duplex homes plus basement apartments.
That is 250 families, and approximately 500 cars.
This zoning district does not permit duplexes. However, this particular application for duplexes is not seeking a Use Variance from the Zoning Board. As previously explained in a full background story here on FAA News, this is because the developer is demanding he can rely on a loophole ordinance the Township Committee adopted in 2018 which states:
"In all Residential Zoning districts, any tract for which a complete application for a Planned Educational Campus has been filed with the Lakewood Planning Board... re-approval for development of that tract shall be conditionally permitted in accordance with the provisions of the R-7.5 District."
Back in March 2018, shortly before this ordinance was adopted, the developers of Yeshiva Chemdas Hatorah filed Application SP 2291 to the Planning Board for an Educational Campus at this site.
This application was never actually presented to the Board at a public hearing, rather it was simply filed with the Board's administrative staff.
The developer is now relying on this Educational Campus "submission" as the basis to now be permitted to apply for these 125 duplexes on 10,000 sq foot lots (which are permitted in the R7.5 zoning district) as a by-right application.
As previously reported here on FAA News, as soon as legal notice of this application was sent to the neighbors, they retained Teaneck Attorney Jan Meyer Esq., to represent them in opposing this application.
Mr. Meyer wrote to the Board "The Applicant bases this application on the fact that they previously file an application for a Planned Educational Campus, under SP2291. Of note, SP2291 has never been heard by the Board, let alone granted, as a result of the inaction of the Applicant.
"The idea that a developer can circumvent zoning laws, functionally rezoning an R-40 to an R-7.5 simply by filing an application that is never acted or granted on is plainly improper and contrary to law and logic. Accordingly, this application, which seeks to develop an R-40 zone to an R-7.5 standard, requires a D variance from the Zoning Board of Adjustment. Accordingly, the Planning Board does not have the authority or the jurisdiction to hear the above mentioned application."
As the news was also broken here on FAA News, just days prior to the hearing, Mr. Meyer submitted a follow up letter to the Board advising them of a major corruption risk due to significant conflicts of interest between Chemdas Hatorah's attorney Adam Pfeffer and Board Member Justin Flancbaum.
Subsequently, the developers of Yeshiva Chemdas Hatorah changed attorneys to John Doyle. Additionally, Mr. Flancbaum wisely did not attend the public hearing.
At their public hearing on the application, held in December 2022, the Planning Board delved into the 2018 Educational Campus application submission to determine whether or not it was indeed a "complete application was filed."
Board Attorney John Jackson Esq. noted that in August 2018 the Board Engineer provided a written review letter of the application and noted certain items which needed to be addressed before the application could be considered for a public hearing. Since that time, the applicant did not submit any follow up on the outstanding items.
In March 2020, Board Administrator Ally Morris wrote to the applicant:
"Your application has not yet been approved or denied by the Board... In the absence of activity on this application... the Board will schedule it to be dismissed without prejudice..."
Shortly afterwards, Attorney Adam Pfeffer responded:
"The applicant is addressing the design waivers and review comments. We anticipate providing additional submission documents in the near future."
Board members discussed the nuanced wording of the 2018 ordinance which states:
"In all Residential Zoning districts, any tract for which a complete application for a Planned Educational Campus has been filed with the Lakewood Planning Board... re-approval for development of that tract shall be conditionally permitted in accordance with the provisions of the R-7.5 District."
Board members ultimately determined that simply "dropping papers down on the desk" is not enough and you need to actually go forward with your application and comply with the Board Engineer's review letter in order for an application to be considered "complete application... filed," and because the developers of the 2018 Educational Campus developers did not submit additional documents as required by the Board Engineer, that application was deemed incomplete and therefore they are now not eligible for "re-approval for development of that tract.. in accordance with the provisions of the R-7.5 District."
Accordingly, the Board voted that they lacked jurisdiction to hear this application as duplexes are not a permitted use in this zone and they are only permitted in accordance with the 2018 ordinance.
Mr. Doyle has now reached out to the Board, requesting them to reconsider this application.
Essentially Mr. Doyle's first argument is that there are two portions to an application, submission and hearing. "Submission" is dealt with by the Board Administrator and "hearing" is dealt with by the Board, and the Board cannot now mix up the two and decide they have jurisdiction over the submission process.
Mr. Doyle notes that when the applicant submitted the Educational Campus application, Board Administrator Ally Morris deemed it administratively complete. "Thus, the process regarding the status of the application was concluded at that point with it being deemed complete. There is no further statutory authority for the application to be deemed incomplete retroactively. Moreover, the completeness determination process is delegated by the MLUL and the UDO exclusively to Ms. Morris, and legally cannot be exercised by the Board."
Mr. Doyle also notes that State Statue provides that any application which is not deemed to be incomplete within 45 days of submission is to be deemed complete, and as their 2018 application was not deemed incomplete within 45 days.
The Board previously made note that the Board Engineer cited numerous deficiencies with the Educational Campus application which were never corrected, and the Board used this as their basis to now say that application was never complete. Mr. Doyle now argues that State Statue requires applicants to "correct any incorrect submissions," but specifically provides that incorrect submissions does not mean that the submission of the application is incomplete.
Mr. Doyle concluded his letter to the Board by urging them to reconsider instead of forcing the matter to go to litigation.
As previously exposed here on FAA News, the kicker to their request is that due to all the opposition from the neighbors - who were represented by Attorney Jan Meyer Esq. - Mr. Doyle specifically asked the Board to consider his request to reconsider the application without any legal notice to the neighbors!
As previously reported here on FAA News, following exposure here on FAA News of this "top secret" reconsideration request, the Board pushed back and directed Mr. Dachs to return to the Board at a future hearing date only after he provides adequate notice to the notice regarding his request!
At the time, a hearing was tentatively scheduled for September.
However, no hearing has been held just yet. That is because the developer is only returning to the Board on Tuesday, November 14, - after Election Day.
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